January 23, 1998
A sitting Judge may engage in activities designed to promote and encourage attorneys to provide pro bono legal services.
A sitting judge should not directly solicit individual attorneys to provide pro bono services to specific persons.
References: MCJC 2, 4(A)(B)(C), 5(B); MRPC 6.1
A group of sitting judges have requested an opinion regarding the activities they may undertake to promote and encourage attorneys to engage in pro bono representation of needy persons. It is the opinion of this Committee that, so long as the sitting judge is not engaged in solicitation of individual attorneys under circumstances which may reflect upon the impartiality of the sitting judge, or otherwise create an appearance of impropriety, a sitting judge may engage in a wide range of activities designed to promote and encourage attorneys to undertake pro bonorepresentation.
MCJC 4 provides a number of activities in which a sitting judge may engage all of which are designed to improve the law, the legal system and the administration of justice. That Canon provides that a sitting judge may, inter alia:
Speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
Appear at public hearings before executive or legislative bodies or officials on matters concerning the law, the legal system and the administration of justice.
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.
MCJC 4(A)(B)(C). All of these are activities which can be used to promote greater participation in pro bono efforts by lawyers.
In addition, MCJC 5(B) provides that a sitting judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may also join in general appeals on behalf of educational, religious, charitable or fraternal organizations, and speak on behalf of such organizations. Thus, a judge may also engage in these activities with organizations engaged in the promotion of pro bono activities.
A judge is axiomatically engaging in ethical conduct when encouraging attorneys to fulfill their responsibilities under the Michigan Rules of Professional Conduct. MRPC 6.1 provides that a lawyer should render public interest legal service, by providing professional services at no fee or a reduced fee to persons of limited means, or to public service or charitable groups or organizations. In encouraging or promoting participation in the rendering of pro bono services, a sitting judge is doing no more than encouraging attorneys to comply with the aspirational provisions of MRPC 6.1.
The introduction to Canon 4 of the MCJC states that:
"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 the 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."
In view of these "encouragements," it could be said that a judge is doing no more than fulfilling his or her obligations under Canon 4 in promoting and encouraging attorneys to undertake pro bono representation of pro se and other needy clients.
MCJC 2 provides that a judge must avoid all impropriety and the appearance of impropriety, and should engage in conduct which promotes public confidence in the integrity and impartiality of the judiciary. It may be possible under some circumstances for a judge to engage in the solicitation of individual attorneys for participation in pro bono activities, which under the circumstances, could be deemed as coercive on the part of the attorney being solicited. Where such individual solicitation is engaged in, attorneys could feel coerced into abiding by the request of a judge, fearing that if they do not abide by the request, they would fall into disfavor with the judge. To avoid even the appearance of impropriety, and to otherwise prevent the potential erosion of confidence in the impartiality of the judge, a sitting judge should refrain from soliciting individual attorneys under such circumstances.
Our system of justice is improved when all are equal before the law and have equal access to our judicial system. The encouragement and promotion of attorney participation in pro bono representation of needy clients only serves to improve our judicial system as a whole. Therefore, it is clearly permissible for sitting judges to write, speak, lecture, and otherwise participate in a wide range of activities designed to promote and encourage attorneys to engage in such pro bono representation.