Formal Opinion 1988-1

February 10, 1988

ACTION: Formal Opinion

OPINION:

We have been asked to address the propriety of participation by members of the judiciary in bar association committee activities. We conclude, as a matter of judicial ethics, that such participation is proper. Indeed, judges are permitted and encouraged to serve on bar association committees and otherwise to contribute to the improvement of the law, the legal system, and the administration of justice.

The Code of Judicial Conduct (CJC) expressly permits a judge to participate in bar association activities. 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.” CJC Canon 4(C). Judges are actively encouraged to participate in such activities, because of their “unique position” to contribute to the above-stated goals, “including revision of substantive and procedural law. . . .” Thode, Reporter’s Notes to Code of Judicial Conduct 74 (1973) (hereinafter cited as “Thode”); see also CJC Canon 4, Commentary.

Bar association committee activities clearly fall within the scope of Canon 4. Judges may analyze the present law and its strengths and weaknesses, and may propose changes in the law, without compromising their capacity to render impartial decisions. Thode, supra, at 74. Judges may also “engage in projects directed to the drafting of legislation,” id. at 75, and may “appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system and the administration of justice,” CJC Canon 4(B).

Judges are by no means limited in their activities to membership on bar association committees. They are also encouraged to contribute independently or through judicial conferences or other organizations “dedicated to the improvement of the law.” CJC Canon 4, Commentary. Thus, subject to the caveats discussed below, it is not only proper but desirable that judges participate in the full panoply of bar association activities.

In participating in these extra-judicial activities, judges should bear in mind the proscription in Canon 4 against “private lobbying” on any subject other than the “administration of justice.” Examples of matters of judicial administration are court personnel, budget, housing, and procedures relating to the operation and administration of the courts. Thode, supra at 75-76. See also Wolfram, Modern Legal Ethics 988 (1986) (matters of judicial administration are the only matters that may be the subject of “nonpublic lobbying or letter writing” by a judge to a legislature). Accordingly, judges should refrain from speaking or writing to members of the legislature or their staff other than with regard to matters of judicial administration.

Additionally, we note certain provisions of Canons 4, 5 and 7 to which judges should be attentive. First, Canon 4 proscribes activities that “cast doubt” on a judge’s “capacity to decide any issue that may come before him.” Second, Canon 5 permits civic activities only insofar as they do not “reflect adversely upon a judge’s impartiality or interfere with the performance of his judicial duties,” and are not performed through an organization that is likely to be “engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.” Finally, Canon 7 proscribes many forms of “political” activity.

For the reasons discussed, judges are not precluded by virtue of their status from participating in activities designed to improve our system of justice. To the contrary, judges can make far-reaching contributions to the law, the legal system and the administration of justice because of their unique perspectives and experiences, and are therefore encouraged to participate in bar association and other activities dedicated to the achievement of those goals.