Can a sitting judge promote and encourage lawyers to do pro bono work, and may the judge personally ask individual attorneys to take specific cases?

Plain-English summary

A group of sitting judges asked what they could do to promote and encourage lawyers to provide pro bono representation of needy persons. The opinion concluded that, so long as a judge does not solicit individual attorneys under circumstances that may reflect on the judge's impartiality or create an appearance of impropriety, a judge may engage in a wide range of activities to promote and encourage pro bono representation.

The opinion grounded this in MCJC 4, which lets a judge speak, write, lecture, teach, and participate in activities concerning the law, the legal system, and the administration of justice; appear before legislative or executive bodies on such matters; and serve with organizations devoted to improving the law, all of which can promote pro bono participation. It noted MCJC 5B permits a judge to take part in civic and charitable activities and join general appeals, and that encouraging lawyers to meet their responsibilities under MRPC 6.1 (the aspirational public-interest-service rule) is itself ethical conduct, consistent with Canon 4's encouragement that judges contribute to improving the law.

The opinion cautioned, however, under MCJC 2's command to avoid impropriety and its appearance, that a judge soliciting individual attorneys to take specific matters could be coercive: a lawyer might feel compelled to comply, fearing disfavor with the judge. To avoid the appearance of impropriety and prevent erosion of confidence in the judge's impartiality, a sitting judge should refrain from such individual solicitation, while remaining free to write, speak, lecture, and otherwise promote pro bono participation broadly.

Currency note

This opinion was issued in 1998. The Michigan Code of Judicial Conduct it interprets has been amended and renumbered since, including the canons governing a judge's extrajudicial and law-improvement activities. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a judge encourage lawyers to do pro bono work?

A: Yes. The opinion concluded a judge may engage in a wide range of activities, including writing, speaking, lecturing, and serving with organizations, to promote and encourage pro bono representation.

Q: Can a judge personally ask a particular lawyer to take a specific pro bono case?

A: No. The opinion concluded a judge should refrain from soliciting individual attorneys for specific matters, because the lawyer could feel coerced and it risks the appearance of impropriety.

Q: Why is promoting pro bono considered proper for a judge?

A: The opinion concluded that encouraging lawyers to meet their MRPC 6.1 responsibilities is ethical conduct and fits Canon 4's encouragement that judges help improve the law and the administration of justice.

Background and rules framework

The opinion interpreted the Michigan Code of Judicial Conduct, particularly MCJC 2 (avoiding the appearance of impropriety), MCJC 4 (activities to improve the law and the legal system), and MCJC 5B (civic and charitable activities), in connection with MRPC 6.1 (Model Rule 6.1) on voluntary pro bono service.

Citations and references

Code of Judicial Conduct (as cited):

• MCJC 2 (appearance of impropriety)
• MCJC 4 (activities to improve the law, the legal system, and the administration of justice)
• MCJC 5B (civic and charitable activities)

Rules of Professional Conduct:

• MR 6.1 / MRPC 6.1 (voluntary pro bono public service)

See also

• Mich Judicial Ethics Op. J-8: a judge's civic and charitable activities
• Mich Judicial Ethics Op. J-1: a judge's civic and charitable activities (withdrawn)

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=708&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

J-7

January 23, 1998

SYLLABUS

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

TEXT

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 bono representation.

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.