The Ethics Advisory Committee has been asked for its opinion as to whether the Code of Judicial Conduct allows a trial court judge to act as a director, president-elect or president of a law school alumni association.

According to the request, the judge has served as a member of the board of directors of the association since earlier this year. The judge indicates that neither the judge individually nor the association have engaged in fund raising activities in the past, although the association will likely engage in such activities in the future. The association will sponsor an annual alumni banquet, class reunions and other social events, will advise the law school administration on matters of mutual interest, and may sponsor continuing legal education seminars.

Canon 4 of the Code of Judicial Conduct deals with a judge's involvement in quasi-judicial activities - activities which improve the law, the legal system or the administration of justice. Canon 5 of the Code of Judicial Conduct governs a judge's involvement in extra-judicial activities -- avocational, civic, charitable, financial and fiduciary activities. According to the opinion request, some of the alumni association's proposed activities fall squarely within Canon 4 while others more closely resemble Canon 5 activities. Consequently, the committee has examined the Judge's proposed role in the association under both Canons 4 and 5.

                  The applicable provisions of Canon 4 state:

                  A judge, subject to the proper performance of his judicial duties, may engage in the following quasi-judicial activities, if in doing so the judge does not cast doubt on the capacity to decide impartially any issue that may be involved in matters before the court: 

                       (C) A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice which may include a constitutional revision commission and may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities.

                  Canon 5(B) provides:

                  A judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director , trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:          

                          (1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

                          (2) A judge should not solicit funds for any educational. religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but may be listed as an officer, director or trustee of such an organization. A judge should not be a speaker or the guest of honor at an organization's fund raising events, but may attend such events. A judge should be especially sensitive to the potential conflicts which may result from serving in positions of responsibility in such organizations while carrying out judicial duties and limit the judge's duties in the area of solicitation of funds for the organization. A judge should disqualify him or herself in any cases where the position and authority of the judge in the organization would                give an appearance of impropriety.

                          (3) A judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility  for approving investment decisions.

Although worded slightly differently, both Canons prohibit participation or service which interferes with the judge's performance of judicial duties. In Informal Opinion 89-11, the committee stated that participation in a charitable organization which would have required a judge to be away from the courthouse for an average of one day per week was prohibited. In Informal Opinion 90-1, the committee stated that teaching a business law class which would have required a judge to be away from the courthouse for approximately six hours per week during regular court hours was also prohibited. In the present matter, there is nothing in the opinion request to indicate that the judge's service in the association will interfere with the judge's judicial duties. However, the judge should examine the expected level of involvement and ensure that participation in the association does not interfere with judicial duties.

Both Canons also prohibit participation in any activity which casts doubt on judicial impartiality. Although no indication of such activities is apparent in the opinion request, the judge should ensure that service in the association does not adversely affect the judge's ability to impartially decide matters that may come before the court. In addition to the limitations contained in both Canons 4 and 5, Canon 5(B) prohibits a judge from serving as an officer, director, trustee or non-legal advisor in an educational. religious, charitable, fraternal or civic organization if the organization is conducted for the economic or political advantage of its members, will be involved in proceedings that would ordinarily come before the judge, or will be regularly engaged in adversary proceedings in any court. It does not appear, from the opinion request, that the judge's service will be prohibited for any of these reasons. However, the ABA Commentary to Canon 5(B) recognizes that the "changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue his relationship with it."

Subject to the limitations set forth above, it is the opinion of this committee that the Code of Judicial Conduct permits a trial court judge to serve as a director, president-elect or president of a law school alumni association. Although the proposed service is allowed, both Canons 4 and 5 proscribe involvement in certain activities associated with that service. While Canon 4 allows a judge to assist a quasi-judicial organization in raising funds, prohibiting only personal participation in public fund raising activities, Canon 5 utterly prohibits a judge from soliciting funds and from using or permitting the use of the prestige of the judicial office for that purpose in an extra-judicial organization. Because the alumni association has characteristics of both a Canon 4 and a Canon 5 organization, this committee believes that compliance with the more rigorous standard set forth in Canon 5 is the more prudent course of action for the judge to follow. The more stringent standard is also appropriate because the alumni association's membership consists mostly, if not entirely, of attorneys. As stated in Formal Opinion 89-1:

                                        the rationale behind prohibiting judicial fund-raising in civic, charitable, and other similar organizations ... is the danger that the persons contributing will feel coerced by the judicial office. Not only is that a danger when judges solicit funds from the general public but attorneys are particularly susceptible to this form of coercion.

Although Canon 5(B) precludes judicial involvement in fund raising activities, Canon 5(B)(2) states that a judge may be listed as an officer, director or trustee of a Canon 5 organization. The committee deems it advisable to address the use of an organization's letterhead, containing the judge's name as an officer thereof, in fund raising activities. The federal Advisory Committee on Judicial Activities, in its Advisory Opinion No. 35, was asked whether the use of a judge's name, without an indication of his position, on the stationery of a national charitable organization was permissible.

The Committee stated:

                              There is now no impropriety in the judge permitting his name to be used on stationery . . . used for solicitation purposes provided that his name and office are in no way selectively emphasized by the organization.

In its Informal Opinion 1221, the ABA Committee on Ethics and Professional Responsibility opined that a judge could not send letters soliciting membership in the American Bar Association, either on his own letterhead or that of the ABA. However, the Committee continued:

                             Nothing contained herein, however, is intended to prevent a judge from permitting his name to appear on the letterhead of a bar association or section or committee thereof of which he is a bona fide officer or (in the case of a committee) member, no matter what the use to which that letterhead may be put . .

The committee believes that a judge's name and organizational title may appear on the letterhead of a Canon 5 organization in which he serves, even though that letterhead may be used in the organization's fund raising activities. However, the use of the judge's judicial title and the selective emphasis of the judge's name is not allowed. Nor should the judge's name be listed on materials used solely for fund-raising purposes. Canon 5(B)(2) allows a judge to attend an organization's fund raising events, but states that a judge should not be a speaker or the guest of honor at such events. The committee believes that the Canon permits a judge who serves as an officer or director of an extra-judicial organization to perform perfunctory tasks such as welcoming guests and introducing those who will take a more active part in the event. Perhaps the best advice comes from the language of Canon 5(B)(2) itself: "A judge should be especially sensitive to the potential conflicts which may result . . . and limit the judge's duties in the area ..."

Finally, the Code of Judicial Conduct limits judicial involvement in the investment of funds raised. While Canon 4(C) allows a judge to participate in the investment decisions of a quasi-judicial organization, Canon 5(C) states that a judge should not give investment advice to an extra-judicial organization. Again, the committee believes that the more stringent limitation of Canon 5 should apply to a law school alumni association.