Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 03-3

Date Issued: July 18, 2003
Date Amended: November 21, 2003

Propriety of a Judge's Serving on Board of Non-Profit Corporation that Assists and Educates Members of the Legal Profession who Suffer from Chemical Dependency

ISSUE

May a judge serve on the board of directors of Lawyers Helping Lawyers, a non-profit corporation?

Answer: No.

FACTS

Lawyers Helping Lawyers (LHL) is a newly-formed, non-stock corporation that has applied for non-profit status. Its stated purpose is to assist and educate members of the legal profession who may suffer from chemical dependency or other mental disorders which may impair their professional performance. The corporation evolved from the Virginia Bar Association's Substance Abuse Committee. Three members are appointed by the Virginia Bar Association, three members are appointed by the Virginia State Bar, one member is appointed by the Virginia Board of Bar Examiners and the remaining members are at-large. The first at-large members were appointed by the Substance Abuse Committee. Subsequent at-large members are nominated and voted on by the LHL Board of Directors. The board members establish policy and provide oversight, but are not involved actively in the provision of services.

DISCUSSION

In Virginia Advisory Opinion 00-2, the Committee determined that, while judges may serve on Community Criminal Justice Boards where judicial membership is mandated by statute, the Canons nevertheless preclude judges from voting or participating in such a board's deliberations. These ethical restrictions, the Committee concluded, were required so as not to adversely affect the judges' appearance of impartiality in cases bearing some relationship to the board's activities.

In Virginia Advisory Opinion 00-3, on the other hand, the Committee concluded that a juvenile and domestic relations district court judge may not serve on the board of trustees of a juvenile group home that accepts referrals from the judge's court. The conflict of interests inherent in such service "could create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Thus, the Committee concluded, the judge's service on the group home's board would run afoul of Canons 2A, 2B, 4A and 4C.

In the situation at hand, judges are not required by statute to be on the board of LHL. Thus, the issue now before the Committee is more analogous to the situation presented in Opinion 00-3. Nevertheless, the principles involved in both prior opinions are implicated here as well.

All judges have the power to regulate the performance of the attorneys appearing in their courts. See Norfolk & Portsmouth Bar Ass'n. v. Drewry, 161 Va. 833, 836, 172 S.E. 282, 283 (1934). Pursuant to that authority, judges certainly may refer to LHL attorneys whom they believe may have a chemical dependency problem or other mental disorder. Indeed, a judge reasonably could decide to inform such an attorney that, unless he or she seeks the assistance of LHL, the judge will take or initiate appropriate disciplinary action.*

The Committee recognizes the importance of the power, and sometimes the duty, of judges to supervise and regulate the performance of attorneys appearing in their courts. See generally Canon 3D(2) (setting forth judges' disciplinary responsibilities as to attorneys). The integrity of this important judicial function would be compromised if a judge, while serving on the board of LHL, referred a problem attorney to that organization. See Canon 3E(1) (judge should recuse if impartiality "might reasonably be questioned"). Similarly, the effectiveness of this judicial function would be diminished substantially if, by choosing to become an LHL board member, a judge thereby loses the option of being able to make a referral to the organization that, in particular circumstances, may be most able to help the attorney in question.

The Committee, therefore, concludes that a judge may not serve on the board of Lawyers Helping Lawyers.

FOOTNOTE

*Pursuant to Virginia Code § 54.1-3935, moreover, courts of record have a statutory role in bar disciplinary proceedings and circuit court judges, as members of three-judge panels, are empowered to decide such matters. A referral to LHL clearly could be part of the disposition of such cases.

REFERENCES

Norfolk & Portsmouth Bar Ass'n. v. Drewry , 161 Va. 833, 172 S.E. 282 (1934)
Virginia Advisory Opinion 00-3 (Mar. 27, 2000)
Virginia Advisory Opinion 00-2 (Feb. 1, 2000)
Canon 2A, Canons of Judicial Conduct
Canon 2B, Canons of Judicial Conduct
Canon 3D (2), Canons of Judicial Conduct
Canon 3E (1), Canons of Judicial Conduct
Canon 4A, Canons of Judicial Conduct
Canon 4C, Canons of Judicial Conduct

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999

This page last modified: July 22, 2003