The 2016 Massachusetts Code of Judicial Conduct: Judicial Engagement with the Organized Bar

cohen_cynthiaberenson_barbaraby Hon. Cynthia Cohen and Barbara F. Berenson

Heads Up

In October 2015, the Justices of the Supreme Judicial Court (“SJC”) adopted a new Massachusetts Code of Judicial Conduct, effective January 1, 2016 (“new Code” or “2016 Code”).  The new Code is the culmination of three years of study by a committee of judges, lawyers, and academics, who were appointed by the SJC to study the previous, 2003 Massachusetts Code of Judicial Conduct (“predecessor Code” or “2003 Code”) and to recommend changes in light of the American Bar Association’s 2007 Model Code (“2007 ABA Model Code”).  The committee was fortunate to have among its members three prominent bar leaders:  Attorney Lisa Goodheart and Professor Renee Landers, both past Presidents of the BBA, and Attorney Michael Greco, a past President of both the MBA and the ABA.  Bar associations and individual members of the bar also provided invaluable feedback and suggestions during the public comment period.

The 2016 Code differs substantially from the predecessor Code in both form and substance.  It closely resembles the 2007 ABA Model Code in structure and overall philosophy, but it also contains a significant number of nonconforming provisions, often because the departure is more suitable for a state that does not elect its judges.  A summary of key new and revised provisions is available for review on the website of the Massachusetts Judicial Branch, as is the committee’s Report.

An important difference between the 2016 Code and the predecessor Code pertains to judicial participation in outside activities.  To a large extent, the 2003 Code shielded judges from interactions with the public, in the belief that judicial isolation would best ensure the independence, integrity, and impartiality of the judiciary.  In contrast, the 2016 Code recognizes the value and importance of judicial outreach and affirmatively encourages judges to participate in community activities, so long as they are consistent with a judge’s fundamental obligation to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and that avoids impropriety and the appearance of impropriety.

This new philosophy is particularly evident in rules bearing on judicial engagement with the organized bar.  Early on, in Canon 1, the new Code makes clear that judges are affirmatively encouraged to “participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.”  Rule 1.2, Comment [4]. Later, in Canon 3, Rules 3.1 and 3.7 offer specific guidance concerning a judge’s participation in extrajudicial activities, including those of bar associations.  Rule 3.1 permits a judge to “engage in extrajudicial activities, except as prohibited by law or this Code,” albeit with some general cautions.  For example, the activities must not interfere with the proper performance of the judge’s judicial duties or lead to recurrent disqualification.  That said, as long as the concerns of Rule 3.1 are satisfied, Rule 3.7 encourages judges to participate in activities that “foster collegiality among the bar and communication and cooperation between the judiciary and the bar.”

This encouragement specifically extends to speaking about the administration of justice at bar association events.  Rule 3.7, Comment 1[B].  In a departure from the predecessor Code, a judge ordinarily may do so even when the event is held in space provided by a law firm or is financially supported by one or more for-profit entities, such as law firms or legal vendors, that do substantial business in the court on which the judge sits.  Ibid.  The rationale for this liberalization is that some bar associations, particularly affinity bar associations with smaller memberships, may not be in a financial position to hold events without the support of private sponsors or the use of law-firm space.  The Code cautions, however, that the judge must avoid giving the impression that the sponsors of an event are in a special position to influence the judge.  Rule 3.7, Comment [1A].

The 2016 Code also relaxes what had been an outright  prohibition on a judge serving as a featured speaker or receiving an award or other comparable recognition at a fundraising event of a law-related organization.  A judge is now permitted to speak or be honored if the event is sponsored by a law-related organization that promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar.  Rule 3.7(A)(6A).  As explained in Comment [4], general interest organizations include, for example, state bar associations, city or county bar associations, affinity bar associations, and bar associations that specialize in particular practice areas but whose members take positions on both sides of disputed issues.

The 2016 Code continues to prohibit a judge from serving as a featured speaker or receiving an award at other fundraising events, but more narrowly defines that term.  Under the new Code, a fundraising event is one where the organizers’ chief objectives include raising money to support the organization’s activities beyond the event itself; unless that definition is met, an event is not considered to be a fundraising event, even if the revenues from the event ultimately exceed the costs.  Rule 3.7, Comment [3].

The 2016 Code also modifies the rules governing a judge’s acceptance of invitations to attend without charge a luncheon, dinner, reception, award ceremony, or similar event held by a law-related organization in Massachusetts.  A judge may now accept such invitations without having to obtain a written determination from the Chief Justice of the court on which the judge sits that acceptance will serve a legitimate public purpose; instead, the Code presumes that a judge’s attendance at such events will serve a public purpose.  The intent of this provision is to make it less burdensome for judges and their Chief Justices to facilitate judicial attendance at local bar events.  In other instances, judges remain required to obtain determinations from their Chiefs before accepting complimentary invitations.  See Rule 3.14.

At the same time that the SJC adopted the new Code, it also revised SJC Rule 3:11, which governs the Committee on Judicial Ethics.  Among other things, the revised rule provides that the Justices may from time to time issue an Ethics Advisory to elucidate the meaning or application of a provision of the Code and to expound upon provisions that are of broad interest and application. SJC Rule 3:11(4).  Groups of judges and lawyers, including bar associations, may request an Ethics Advisory, but the court may decline to render one for any reasons it deems sufficient.  Ibid.  Although the Committee on Judicial Ethics will continue to render Informal Opinions and Letter Opinions (formerly known as Advisory Opinions) only to judges, by offering bar associations the opportunity to seek clarification of Code provisions, the new rule recognizes that issues of judicial ethics are of great interest and importance to the bar as well as the judiciary.

Hon. Cynthia J. Cohen is an Associate Justice of the Appeals Court.  She chaired the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and currently chairs the Committee on Judicial Ethics.

Barbara F. Berenson is a senior attorney at the Supreme Judicial Court. She staffed the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and is currently staff counsel to the Committee on Judicial Ethics.

 

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