Question: A court commissioner has asked the Ethics Advisory Committee whether the commissioner may serve on the Compliance/Service Delivery Committee to Utah Legal Services (the ULS Committee).

Answer: The commissioner may serve on the ULS Committee provided the commissioner is not giving legal advice or acting as a legal advisor. The commissioner should also disclose the service in cases involving Utah Legal Services attorneys.

Discussion: The Ethics Advisory Committee referred this question to the Judicial Council for resolution. The Judicial Council has determined a resolution to the question and instructed the Committee to issue this Informal Opinion.

Utah Legal Services is a private, non-profit organization whose prime purpose is delivering legal services to the poor. The organization employs attorneys who represent indigent clients. Utah Legal Services is governed by a board of trustees. The board of trustees is apparently assisted by various committees. According to the opinion request, the purpose of the ULS Committee is to "oversee compliance by the corporation, its attorneys, and employees with all statutory, regulatory, and ethical requirements and standards and report such compliance to the board of trustees." The commissioner has been asked to be an "at large committee member who would be non-voting."

Subject to certain limitations, Canon 4C(3), allows a judge to "serve as an officer, director, trustee or non-legal advisor . . . of an educational, religious, charitable, fraternal or civic organization not conducted for profit." In addition to fund-raising and membership solicitation restrictions, a judge may not serve as an officer, director, trustee or "non-legal advisor," "if it is likely that the organization will be frequently engaged in adversary proceedings before any court."

The Committee is initially concerned that the commissioner will be acting as a legal advisor to the ULS Committee and, in turn, to Utah Legal Services. As noted, the ULS Committee will oversee compliance with statutory, regulatory and ethical requirements and standards. Additional information has not been provided as to how the ULS Committee will fulfill its obligation. The Committee questions whether the commissioner is being asked to use the commissioner’s legal expertise to determine whether Utah Legal Services is in compliance with legal and ethical standards. Such service would be inappropriate. The commissioner is prohibited from giving legal advice or judgments when serving a civic organization. Before accepting an appointment, the commissioner must clarify the commissioner’s role on the ULS Committee.

The next question for the Committee is whether Utah Legal Services is an organization that is frequently engaged in adversary proceedings before any court. If so, service is prohibited even though the service would be as a non-voting member.

The Ethics Advisory Committee of the Michigan State Bar, in Opinion JI-38, recognized a distinction between organizations that are frequent litigants and organizations that provide counsel for indigents, but are not themselves parties in court. The Michigan committee noted that organizations such as the American Civil Liberties Union exist primarily for the purpose of bringing litigation. The organization itself is a frequent litigant and therefore service to such an organization is inappropriate. The Michigan Committee noted, however, that "a legal services organization regularly appears in court on behalf of others, advocating the interest of the particular client rather than the interest of the organization." The organization itself is not a litigant, but simply hires attorneys to represent clients.

The Michigan committee noted that legal service organization boards of trustees and committees are "segregated from information about particular cases in order to preserve the advocates’ independent professional judgment about the representation." The Michigan committee therefore determined that a judge may serve on a legal services entity that hires attorneys to provide representation. The Michigan committee offered an additional caveat stating that service would not be appropriate if the organization "made policy decisions that have political significance or imply commitment to causes that may come before the courts for adjudication."

The Florida Ethics Advisory Committee in Opinion 86-16 noted a distinction between a "legal aid society [that] acts only as an administrative body to assign cases to lawyers on a pro bono basis," and a "legal aid society [that] engages in litigation directly or represents impoverished people through the use of staff counsel." The Florida committee determined that service would be permitted in the former situation, but not in the latter. The Florida committee did not address whether the Rules of Professional Conduct create a sufficient buffer between a legal services board and the attorneys who represent indigent persons in courts.

After reviewing these authorities, the Committee is of the opinion that Utah Legal Services is not an organization that is frequently engaged in proceedings before any court. The organization conceivably might appear in litigation, but most frequently the attorneys hired by Utah Legal Services appear on behalf of other parties, and not Utah Legal Services itself. The staff attorneys represent the interests of the indigent clients and not Utah Legal Services. The Committee believes that the Rules of Professional Conduct applicable to attorneys are a sufficient buffer between Utah Legal Services management and committees, such that there would not be a connection between the work of the commissioner on a committee and the activities of the attorneys hired by the organization. Service by the commissioner is therefore permitted under Canon 4, unless the ULS Committee directs the actions and judgment of the hired attorneys.

The final concern for the Committee is whether service to Utah Legal Services would violate Canon 2A which requires a commissioner to "exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciary," or Canon 3E which requires disqualification "in a proceeding in which the [commissioner’s] impartiality might reasonably be questioned." The Michigan committee noted that there may be a perception issue when a judge is associated with an organization that provides assistance to litigants. Based on its conclusion, the Michigan committee apparently determined that the perception issue was not significant.

The Committee is concerned about the perception of parties who may appear before the commissioner in cases involving attorneys employed by Utah Legal Services. Although the attorneys may well understand that the commissioner’s service to Utah Legal Services is sufficiently disconnected from the work of Utah Legal Service’s attorneys, parties in those cases may reasonably question whether the commissioner can be impartial. While the Committee has little doubt that a commissioner could be impartial in such a circumstance, the perception of the public litigants is an important consideration.

The Committee recognizes that service to a civil organization such as Utah Legal Services helps to improve the administration of justice in the legal system. Judicial officers should be encouraged to serve, where appropriate. If the commissioner serves on this ULS Committee, the commissioner should disclose the service in cases involving Utah Legal Services attorneys. The parties may waive disqualification under Canon 3F. If disqualification ultimately disrupts case management for the commissioner’s court, the commissioner should re-evaluate whether continued service to Utah Legal Services is appropriate.