There was a time when the ABA’s Ethics Committee seemed to neglect judicial ethics issues. It went twenty-five years without issuing an opinion on judicial ethics. Recent iterations of the Committee, however, have seemed to be more sensitive to judicial ethics issues: all four judicial ethics opinions have been published within the last eight years.
The newest opinion concludes: “A state supreme court judge may sign a letter printed on the judge’s stationery that is duplicated and mailed by the unified state bar association directed to all lawyers licensed in the state encouraging those lawyers to meet their professional responsibility under Rule 6.1 of the Model Rules of Professional Conduct and provide pro bono legal services to persons in need and to contact the bar association for information about volunteer opportunities.” That conclusion is mostly unsurprising in light of new(er) Model Code Rule 3.7(B), which permits judges to “encourage lawyers to provide pro bono publico legal services.” The accompanying comment, moreover, offers non-exhaustive examples of “[s]uch encouragement,” “including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.” The opinion is slightly surprising, however, in its narrowness: the facts are so specific that one might expect to find this opinion in a specific state addressed to a specific judge. That said, given the country’s growing justice gap, this national opinion is for not only a good cause but a pressing cause. The opinion also includes a helpful summary of prior state ethics opinions on this issue:
Alabama Jud. Inquiry Comm’n Adv. Op. 04-847 (2004) (judge may send letter asking lawyers to participate in state bar operated pro bono program); Florida Sup. Ct. Jud. Ethics Adv. Op. 2010-13 (2010) (judge may send general solicitation letter to “Members of the Bar” asking lawyers to participate in The Florida Bar’s One Campaign for pro bono legal service); Florida Sup. Ct. Jud. Ethics Adv. Op. 2012-26 (2012) (judge may ask a local bar association to host an event at which the judge will ask lawyers to provide pro bono legal services; however, judge must monitor tone and delivery of the request to ensure it is not coercive); Maryland Jud. Ethics Comm. Op. 1996-20 (1996) (judge may write personal letters to lawyers asking lawyers to provide pro bono services); Texas Comm. on Jud. Ethics Op. 258 (2000) (board of judges may send letter to lawyers asking lawyers to consider providing pro bono service hours to joint project of local legal service organizations). See also Alaska Comm’n on Jud. Conduct Adv. Op. 2004-01 (2004) (judge may not refer lawyers to a particular pro bono program); Kentucky Ethics Comm. of the Judiciary Op. JE-107 (2005) (while a generic letter to the bar is permissible, judge may not urge lawyers to volunteer with a specific pro bono organization). But see Michigan Stand. Comm. on Prof’l & Jud. Ethics Op. J-7 (1998) (judge may not solicit individual lawyer to perform pro bono); Nebraska Jud. Ethics Comm. Adv. Op. 02-3 (2002) (judge may not sign recruiting letter for bar association pro bono campaign).
In addition, the opinion offers judges some guidance as to when “encouragement” could cross the line into unethical “coercion:”
The number of lawyers who will receive the letter. In smaller jurisdictions or in limited-scope mailings that are targeted at lawyers who practice in a particular area of the law, a reasonable person might feel coerced into providing pro bono legal services.
The number of judges serving the jurisdiction. Again, in smaller jurisdictions with a limited number or only one judge, a lawyer who receives a letter from the judge encouraging that lawyer to provide pro bono legal services could feel coerced into doing so.
Whether the letter is a personalized correspondence or a general plea to the bar as a whole. A letter in which the recipient lawyer is identified by name in the salutation runs the risk of a reasonable person finding such a letter coercive.
Whether there will be some kind of post-letter monitoring. A letter in which a judge encourages a lawyer to perform pro bono legal services and then explains that the lawyer’s participation, or lack thereof, will be monitored runs the risk of a reasonable person finding such a letter coercive.
The tone of the letter. A letter in which the justice speaks in aspirational and encouraging language will have a much different impact than a letter that features dictatorial, condescending language.
For the full opinion, click here: ABA Ethics Op. 470 (2015). For professor and former judge Ray McKoski’s commentary on the opinion and Rule 3.7(B), click here. Finally, for the earlier ABA opinions on judicial ethics (addressing a judge’s use of social media, presiding over a case involving the judge’s personal lawyer, and fundraising for problem-solving courts), click here.