COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 85
Membership in the American Bar Association.
A judge who is a member of the American Bar Association (ABA) and
who has been invited to participate as a member of a panel making a presentation
at its annual meeting asks three questions in light of the fact that the
ABA has occasionally taken positions with respect to controversial issues
like abortion: (1) whether continued membership in the ABA is permissible
for a federal judge, (2) whether active participation in ABA programs is
permissible, and (3) whether a federal judge who is a member of the ABA
is required to recuse in a case in which the ABA files an amicus brief.
The panel on which the judge has been invited to participate will
address a topic related to improvement of the law and the administration
of justice. That topic will be unrelated to any controversial issue upon
which the ABA has taken or is considering taking a position.
The Commentary to Canon 4 specifically encourages participation
in bar associations:
As a judicial officer and person specially learned in the law, a
judge is in a unique position to contribute to the improvement of the law,
the legal system, and the administration of justice, including revision
of substantive and procedural law and improvement of criminal and juvenile
justice. To the extent that the judge's time permits, the judge is encouraged
to do so, either independently or through a bar association, judicial conference,
or other organization dedicated to the improvement of the law.
Canon 4 further provides, however, that a judge may engage in law-related
activities only "if in doing so, the judge does not cast doubt on a capacity
to decide impartially any issue that may come before the judge."
Professor Thode, the reporter to the ABA Committee which drafted
the original Model Code of Judicial Conduct on which our Code is based,
makes the following comment on these aspects of Canon 4: "[Canon] 4C specifically
authorizes . . . [participation in bar activities] as another means of
keeping the judge in contact with the world around him and as a way of
making his expertise available in the ever-continuing effort to improve
the law. The judge must not, however, become involved in a way that casts
doubt on his impartiality. The 'impartiality' standard would, for example,
prevent a judge from participating as a member or officer of a partisan
legal organization that champions one special interest in litigation that
may be heard in the court on which he sits. Such a relationship would almost
certainly cast doubt on a judge's capacity to decide impartially the issues
in that type of litigation." See Thode, Reporter's Notes to Code
of Judicial Conduct 76 (ABA 1973).
The Committee has published opinions indicating that it is permissible
for a judge to be a member or officer of an open membership bar association
and that recusal is not required where such a bar association is a party
or files an amicus curiae brief, so long as the judge has not participated
in the development of the bar association position on the matter in question
in the suit. See Advisory Opinion Nos. 34, 52, 82, and 93 and Compendium
of Selected Opinions § 4.5 (1997).
In the Committee's view, the judge's membership in the ABA and participation
on an ABA panel devoted to improvement of the administration of justice
cannot reasonably be viewed by the bar or the public as an endorsement
of any of the positions the ABA has occasionally taken on controversial
issues. Thus, the Committee concludes that the judge's continued membership
in the ABA is permissible, that the judge's participation in the panel
is permissible, and that the judge is not required to recuse in a case
in which the ABA files an amicus brief assuming that the judge has not
participated in the development of the ABA's position on the issue in question
in the suit.
June 14, 1991
Revised January 16, 1998