2013-15 (April 19, 2013)
Extrajudicial Activities; Service on Board
Rules 1.2, 1.3, 3.1 & 3.7
May a Judicial Official serve on the board of directors of a nonprofit organization that provides services to court-involved clients and receives the majority of its funding from contracts with the Judicial Branch?
The nonprofit organization has multiple contracts with the Judicial Branch to provide various assessments and services to, inter alia, litigants in family, juvenile and criminal court matters (hereinafter “clients”). Clients may be referred directly by the court, as well as by probation and family services personnel. Various contracts require the nonprofit organization to provide reports to the court and to have personnel appear in court to testify regarding a client’s success or failure to complete the services and programs provided by the nonprofit organization.
Response: Rule 1.2 of the Code of Judicial Conduct states that a judge “should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Rule 1.3 of the Code states that a “judge shall not use or attempt to use the prestige of judicial office to advance the private interests of the judge or others or allow others to do so.”
Rule 3.1 of the Code states that a Judicial Official may engage in extrajudicial activities, except as prohibited by law; however, a judge may not participate in extrajudicial activities that will (1) interfere with the proper performance of judicial duties, (2) lead to frequent disqualification, (3) appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, or (4) appear to a reasonable person to be coercive.
Rule 3.7(a) provides that a judge “may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice… including,…(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity: (A) will be engaged in proceedings that would ordinarily come before the judge; or (B) will frequently be engaged in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.” The rule’s commentary states that “[e]ven for law related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely on a judge’s independence, integrity, and impartiality.” Rule 3.7, cmt. (2).
In discussing Rule 3.7(a)(6)(B), the Committee (with one member recused) determined that the prohibition on serving as an officer, director, trustee or nonlegal advisor of an organization concerned with the law, the legal system or the administration of justice if the organization “will frequently be engaged in adversary proceedings in the court of which the judge is a member” applies, not only when the organization is a party to adversary proceedings, but also when the organization supplies witnesses and reports for use in adversary proceedings. Based upon the foregoing, an appearance of impropriety would arise if a Judicial Official serving on the board of directors of a nonprofit organization or member of the Judicial Official’s staff were to refer clients to the nonprofit organization. Further, the nonprofit organization may use or attempt to use the prestige of the Judicial Official’s office when seeking additional contracts with the Judicial Branch or others. Accordingly, the Committee, with one member recused, unanimously determined that service on the nonprofit organization’s board of directors would violate Rules 1.2, 1.3, 3.1 and 3.7(a)(6)(B).