May 7, 2007

Question: The Ethics Advisory Committee has been asked whether a judge may serve on the Board of the National Alliance for the Mentally Ill (NAMI).

Answer: A judge may not serve on the Board.

Discussion: Canon 4C(3) permits a judge to "serve as an officer, director, trustee or nonlegal advisor . . . of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations: . . . A judge shall not serve . . . if it is likely that the organization will be frequently engaged in adversary proceedings before any court." According to the judge who requested the opinion, representatives of NAMI frequently appear in the judge’s court to advocate for individuals who suffer from mental illness. NAMI representatives also appear in court to offer mentors and programs for defendants and their families. The question for the committee is whether the organization is a frequent litigant in court.

The committee addressed a similar question in Informal Opinion 00-1. The question in that opinion was whether a court commissioner could serve on a Utah Legal Services committee. The committee determined that the commissioner could serve on the committee, but must disclose that service in cases involving Utah Legal Services’ attorneys. In reaching this conclusion, the committee reviewed opinions from other states that had addressed similar questions.

The committee cited Michigan State Bar Opinion JI-38. The Michigan committee had determined that a judge could serve on a legal service organization because the organization itself did not appear in court, but only staff attorneys who appeared on behalf of individual clients. The Michigan committee had noted that the boards of legal service organizations are "segregated from the information about particular cases in order to preserve the advocate’s independent professional judgment about the representation." The Michigan committee cautioned, however, 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." This condition is important for the question that has been asked.

Although NAMI itself is not a frequent litigant before the judge’s court, NAMI makes policy decisions that might have significance for the cases that come before the judge’s court. The NAMI Utah website contains information on how NAMI members and volunteers may be active lobbyists. The web page also contains policy statements on issues that might come before the court, such as court ordered treatment of individuals determined to be mentally ill, and diversion programs for the mentally ill. NAMI is also an active lobbyist before the Utah State Legislature.

NAMI is committed to causes that come before the judge for adjudication. Unlike the attorneys who are employed by a legal services organization, NAMI advocates who appear in court are not only advocating for individuals, but also appear to be advocating for the policies adopted by NAMI. Because the board of NAMI would apparently be involved in shaping the policies of NAMI, a judge may not serve on the NAMI board.