Question: May a judge receive a complimentary judicial fellowship from the Association of Trial Lawyers of America?

Answer: No. A judge cannot accept the fellowship.

Discussion: The Association of Trial Lawyers of America (ATLA) has sent to judges an invitation to be recognized as a judicial fellow. The invitation describes three specific benefits to being recognized as a judicial fellow: Judicial fellows receive a complimentary subscription to Trial Magazine, a complimentary guest registration to ATLA conventions, and various educational materials concerning the civil justice system. The invitation also contains the following disclaimer:

If you have concerns about this offer because several states supreme courts have ruled it unethical for judges to join organizations that represent a single side in legal disputes, ATLA recognizes members of the judiciary as judicial fellows, not members.

In order to be recognized as a judicial fellow, and to receive the benefits, a judge must submit a judicial fellow enrollment form. The form requests basic information such as name, mailing address, date appointed to the bench, and the name of the court on which the judge sits. ATLA is recognized as a plaintiffs-oriented organization.

Canon 2A requires a judge to "exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciary." Canon 4A requires a judge to "conduct the judge's extra-judicial activities so that they do not . . . cast a reasonable doubt on the judge's capacity to act impartially as a judge." Because ATLA is a plaintiffs organization, ethics advisory committees that have discussed judicial membership in ATLA have generally determined that judges cannot ethically maintain a membership in the organization. As stated by the Alaska Ethics Advisory Committee, in Opinion 99-4;

judges are not permitted to be members of special bar association [sic], as it would convey the appearance of a special relationship to one side in the adversarial process. . . . The Association of Trial Lawyers of America is a plaintiff's bar association. It promotes itself as the leading fight for the rights of injured persons and engages in lobbying activity against efforts to limit defendant liability. Because the Association of Trial Lawyers of America advocates the position of plaintiffs in civil disputes, a judge's membership in that organization could convey a sense that the judge is predisposed toward plaintiffs.

Because judicial membership in ATLA has been prohibited, ATLA states that it does not recognize judicial fellows as "members." The committee must decide whether this distinction is sufficient to allow a judge to become a judicial fellow. The committee must also decide whether its opinion in Informal Opinion 99-6, which permitted a judge to attend a gathering of attorneys who represent only one side in a dispute, opens the way for membership in one-sided specialty bar associations.

Among the states that have considered the distinction between a member and a judicial fellow, there has not been consensus of opinion. The Alaska Advisory Committee stated that "special categories of membership or affiliation do not obviate the problem" of judges being perceived as predisposed toward one side of a dispute. Similarly, the Arkansas Judicial Ethics Advisory Committee, in Advisory Opinion No. 99-07, stated that "to be a member, whether or not the judge pays dues, whether or not the membership is described as honorary or complimentary, identifies the judge as generally supportive of the positions taken by that part of the bar." On the other hand, the Nebraska Ethics Advisory Committee, in Opinion 00-2, stated that if recognition as a judicial fellow is "limited solely to [receiving the three benefits] outlined in the invitation, acceptance of the invitation would not be prohibited. If, however, such recognition entails anything else which amounts more to complimentary membership in the organization or could in some way imply endorsement of the organization and the organization's goals and purposes, then acceptance of the invitation would be prohibited." The Nebraska committee found that if the invitation is "taken at face value . . . it would appear that acceptance of the invitation is acceptable."

Although the committee believes that ATLA's attempt to distinguish judicial fellow from full membership is important, the attempt is nonetheless insufficient to eliminate the concern related to the appearance of partiality. ATLA has established a process by which judges must specifically enroll to receive the judicial fellow benefits. By taking this step, a judge could be perceived as separating him or herself from other judges, and aligning with ATLA. The committee therefore agrees with those states which have determined that ATLA has simply created a different class of membership; a membership that could still create the perception of a predisposition toward plaintiffs. The question that remains is whether our opinions have nevertheless opened the way for judicial membership in a one-sided specialty bar association.

In Informal Opinion 99-6, the committee decided that "the single component interaction prohibition should not be extended to educational settings involving attorneys." The committee determined that, as long as the judge is willing and able to accept invitations from other components of the bar (among other prohibitions), a judge could lecture before groups of attorneys who represent only one side of litigation. The committee recognized the important role of judges in providing education to the bar, a role which should be facilitated when possible.

The important role that judges play in educating the bar does not extend to judicial membership in one-sided specialty bar associations. The committee agrees with the Arkansas Ethics Advisory Committee which determined that "certainly judges are permitted to attend ATLA meetings and forums, to speak at ATLA programs, to receive ATLA mailings, to receive ATLA materials, and to prepare materials for ATLA publications," (within the restrictions discussed in other Utah opinions), but membership of any sort can create a perception of endorsement. The committee therefore determines that a judge cannot enroll to become, and cannot accept a designation as, a judicial fellow of ATLA.⁽¹⁾

1. The committee also notes that issues are raised concerning the "complimentary" nature of the benefits. Questions arise concerning the acceptance of gifts outside the course of ordinary social hospitality. The committee does not address whether a judge could accept these complementary benefits if they were not conditioned on becoming a judicial fellow.