Opinion #161. Raising Funds in Support of National Center for Judicial Education
Issued by the Professional Ethics Commission
Date Issued: January 21, 1998
The Commission has been asked whether the conclusion reached in its Opinion #129 would apply to the creation of a Maine committee of lawyers and lay persons to raise funds in support of a national center concerned with judicial education. The center presents programs for the education of judges of all state and federal courts. The funds would be used for all the work of the center, including its educational programs for judges. Maine judges are now eligible to attend, and we are informed have attended, programs sponsored by the center. The funds raised by the Maine committee would have no bearing on the future attendance of Maine judges. Membership on the Maine fund-raising committee would carry with it an obligation to make a substantial monetary contribution to the work of the center. Membership on the committee could be anonymous or public, depending on the wishes of the member and the requirements, if any, imposed by the Maine Bar Rules.
The Commission’s Opinion #129 concluded that Maine Bar Rule 3.7(h)(1) prohibited Maine lawyers from making and soliciting contributions to a Judicial Education Fund to be created under the auspices of the Maine Bar Foundation. The fund would have made annual grants to the Judicial Department to be used to defray the expense of providing and attending judicial education programs for Maine’s judiciary. The Opinion reviewed the drafting history of Bar Rule 3.7(h)(1), changes in its counterpart in the Model Code of Professional Responsibility, and significant differences between the Maine and Model Rules. The Commission concluded that the Maine Rule is so broadly framed that the phrase “directly or indirectly give or lend anything of value to a judge” must be read as including contributions to a judicial education fund that would benefit only Maine judges, even anonymous contributions, and solicitation of such contributions.
The question now presented to the Commission is different in four ways from the proposal discussed in Opinion #129. First, the recipient organization is national not local; the Maine contributions become part of a fund along with contributions from lawyers and other sources nationwide. Second, there will be no lump sum grant to the Judicial Department attributable directly to the generosity of contributors and effectiveness of solicitors. Third, we are assured that the level of contributions from Maine will have no bearing on the number of Maine judges who attend programs of judicial education or receive scholarships to attend. Fourth, although we are told that the anonymity of contributors and members of the State committee is possible, it seems clear that the operation would be seriously compromised if such a requirement were imposed. We must assume that Maine’s legal and judicial communities would be aware of the total level of contributions from Maine and probably the level of individual and firm contributions.
The legal backdrop to the question has been remarkably static, in view of changes in the surrounding circumstances and the effect of Opinion #129 itself. In 1993 the Maine Supreme Court adopted a revised Code of Judicial Conduct, which details gifts and contributions judges are allowed to accept, including “a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants.” [Canon 4.D(5)(g)] Although the conclusion of Opinion #129 rested in part on an observation that the Maine Bar Rule omitted a reference to the Code of Judicial Conduct, unlike its counterpart in the 1969 ABA Model Code of Professional Responsibility, and although Opinion #129 is now five years old, the language of Maine Bar Rule 3.7(h)(1) has not been changed, nor is the Commission aware of any suggestion that it should be changed.
A majority of the Commission concludes that its answer to the question now before it must be controlled by the answer it gave in Opinion #129. That opinion rested on the phrase “directly or indirectly”, a striking addition to Maine Bar Rule 3.7(h)(1) notably absent in the ABA’s 1964 Model Code of Professional Responsibility, which was a principal source of the Maine Bar Rules. The Opinion also noted that the Maine Rule omitted an exception allowing gifts to judges as permitted by the Code of Judicial Conduct. Among the gifts permitted by the Code of Judicial Conduct would have been invitations to attend activities devoted to “improvement of the law, the legal system, or the administration of justice.” The omission was particularly significant, because it dropped a 1974 change in the ABA Model Code presumably known to the Select Committee that drafted the Maine rule and because Maine had adopted the Code of Judicial Conduct in 1974. The Select Committee’s omission had all the indicia of a purposeful change, convincing this Commission in 1992 that the Maine Bar Rules were designed to ban all forms of monetary support running from lawyers to the judiciary except for taxes and court fees. As we noted above, no attempt has been made to amend Maine Bar Rule 3.7(h)(1), although Opinion #129 is now five years old.
The proposal to create a Maine committee expressly for the support of a national organization whose mission is judicial education, the members of which would be chosen in part on the basis of their interest in making a substantial monetary contribution to the organization, is an indirect gift to every judge who receives educational services from the organization, just as a gift to the United Fund is an indirect gift to beneficiaries of the work of every participating organization. Under MBR 3.7(h)(1), for reasons explained in Opinion #129, it is immaterial that the motives of the contributing lawyers may be purely eleemosynary or civic. It is likewise immaterial that gifts of individual lawyers will in virtually every case be so attenuated when a particular Maine judge finally receives some educational benefit as to be insignificant. The rule requires that lawyers avoid even a suspicion that they are attempting to curry favor with the courts. Changes in the Code of Judicial Conduct as adopted in Maine, as well as changes wrought by the Model Rules of Professional Conduct are not open for consideration by this Commission. Maine Bar Rule 3.7(h)(1) does not impliedly change with the Code of Judicial Conduct; the opportunity to adopt such a cross-reference was declined by the drafters. The Model Rules have not been adopted in Maine; they are going through a laborious review by the Advisory Committee on Professional Responsibility. That body has yet to offer any recommendation based on Model Rule 3.5. This Commission is not authorized to amend the Bar Rules, only to interpret them.