Year 1988 Ethics Opinions
THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1988-1
COMMITTEE ON
PROFESSIONAL AND JUDICIAL ETHICS
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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.
