NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.

JI-38

July 1, 1991

SYLLABUS

A judge may serve on the board of directors of a nonprofit legal aid organization.

If the board adopts policies of political significance or commits to causes that may come before the courts for adjudication, it would be improper for a judge who serves on the board to hear cases in which the organization appears in a representative capacity.

References: MCJC 1, 2, 5B(1); MRPC 1.6, 5.4.

TEXT

A judge inquires whether it is ethically proper to serve on the board of directors of a nonprofit legal aid corporation providing legal services to indigents in the judge's jurisdiction and elsewhere.

A judge's participation in extra-judicial activities is governed by MCJC 5. MCJC 5B(1) states:

"A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization, 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 him or will be regularly engaged in adversary proceedings in any court . . . ."

MCJC 5 must be read in conjunction with MCJC 1 and 2, which require judges to uphold the integrity and independence of the judiciary, and to avoid impropriety in all activities.

The commentary to the 1972 ABA Model Code of Judicial Conduct Canon 5B, which is identical to MCJC 5B, states:

"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 . . . . Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication." Emphasis added.

This commentary is retained in the 1990 ABA Model Code of Judicial Conduct, describing Canon 4C.

MCJC 5B(1) prohibits a judge from serving as a director of a legal services organization if the organization is regularly engaged in adversary proceedings. The question is whether the Canon was intended to disqualify judges from sitting on boards or serving as officers in cases where the organization serves as counsel for a party, as distinguished from cases where the organization is itself a party to the proceeding.

Some jurisdictions have held that Canon 5B prohibits a judge from serving on a legal services board because the staff lawyers for the organization regularly appear in court. Dallas Op 1980-4, "A judge may not serve on the board of directors of a legal services organization when he knows that the organization's staff attorneys will appear in his court. A judge must disqualify himself from hearing any case involving a client of the legal services organization." New York Advisory Committee on Judicial Ethics, Op 88-77 (1988), a judge may not serve on the board of the Prisoners' Legal Services since the organization is regularly engaged in adversary proceedings.

Some states have distinguished organizations based upon their source of funding. California Committee on Judicial Ethics, Op 31 (1983), "Because the funds for operation of the legal aid society are derived from public taxes and charitable donations, it would be difficult for the public to perceive the distinction between the board's fund-raising role and its other duties. As a board member the judge would also be indirectly or directly responsible for legal work done by attorneys on behalf of clients aided by the society." In accord, Missouri Commission on Retirement, Removal and Discipline, Op 84 (1982), a judge may not accept any public service position from any agency or commission which receives funding from the state, including the Missouri Legal Services Corporation.

The Florida Committee on Standards of Judicial Conduct, Op 86-16 (1986) reasons that a judge may serve on the board of a legal aid society if it is an administrative body, i.e., assigns pro bono cases rather than makes policy decisions or decisions that imply commitment to a cause that may come before the courts. Similarly, the Georgia Judicial Qualifications Commission Op 103 (1987) would allow a part-time magistrate to serve without compensation as director of a legal services program that provides pro bono legal services to indigents, where the board manages and directs the program but is not involved in providing legal services or in raising funds.

This latter approach makes the most sense to us. A legal services organization regularly appears in court on behalf of others, advocating the interests of the particular client rather than the interests of the organization. Although the organization is providing counsel in cases which are tried before the judge, a judge's involvement does not appear to be significantly different from a judge who hears cases in which the judge has assigned counsel to an indigent defendant, a daily occurrence in trial courts. The board is segregated from information about particular cases in order to preserve the advocate's independent professional judgment about the representation, MRPC 5.4, and protect confidences and secrets of the clients, MRPC 1.6.

Even if a board member would have no independent information about the matter pending, however, there may still be the appearance of bias and impropriety since the judge, by serving on the advocate-organization's board, has aligned himself/herself with the policy leanings attributed to the organization. "Membership on this board would not promote public confidence in the integrity and impartiality of the judiciary, would constitute using the prestige of the judicial office to advance the interests of others and would convey the impression that others are in a special position to influence the judge." California Committee on Judicial Ethics, Op 31 (1983). In Reporter's Notes to Code of Judicial Conduct, American Bar Association, 1973, author E. Wayne Thode, Reporter for the ABA committee which drafted the 1972 ABA Model Code of Judicial Conduct, states:

"The Committee was of the opinion that a judge should not serve as an officer or director of a Canon 5B organization that is regularly engaged in adversary proceedings in any court. The appearance to other litigants and the public of a lack of impartiality of a judge in a proceeding because a brother judge is an officer or director of a litigating party is simply too strong to be permitted." Emphasis added.

This subject is also addressed in Judicial Conduct and Ethics, Shaman, Lubet & Alfini, Michie Company, 1990, at page 268:

"Judges may not serve as directors or officers of civic or charitable organizations which are likely to come before the court. Some organizations, such as the American Civil Liberties Union and the Mexican American Legal Defense and Education Fund, exist primarily for the purpose of bringing litigation, and Canon 5B(1) obviously prohibits judges from service as directors or officers. Other organizations - such as the Anti-Defamation League of B'nai B'rith, the Sierra Club, and the National Association for the Advancement of Colored People - exist for broader purposes but still frequently appeal to the courts in support of their stated goals . . . . Even ideologically neutral organizations may be engaged regularly in adversary proceedings. Thus, judges should not serve on the board of child welfare associations which receive family court referrals or otherwise appear before the juvenile courts, or of mental health organizations which may be involved in commitment proceedings . . . ." Emphasis added.

The legal services organization in this inquiry does not "exist primarily for the purpose of bringing litigation" but in addition engages in counseling, document drafting, and advice to disadvantaged persons. If the board of the legal aid organization adopts policies of political significance or commits to causes that may come before the courts for adjudication, it would be improper for the judge who serves on the legal aid board of directors to hear cases in which the organization appears in a representative capacity. MCJC 5B would not require the judge's resignation from such a board unless the organization is regularly engaged in adversary proceedings in any court about those policy issues.