Leadership Roles and Litigation

Rule 3.7(A)(6) governs the deepest form of membership in a civic or charitable organization, which is helping to lead it. A judge may serve as an officer, director, trustee, or nonlegal advisor of an organization described in Rule 3.7(A), unless it is likely that the organization will be engaged in one of two kinds of litigation tied to the judge's own court.¹ The first kind is proceedings that would ordinarily come before the judge. The second is frequent adversary proceedings in the judge's court or in any court subject to its appellate jurisdiction.

The limit applies to the same organizations that Rule 3.7(A) covers, so it reaches law-related groups as well as educational, religious, charitable, fraternal, and civic ones.² A sponsor's qualifying status answers only whether the judge may take part at all. The leadership provision adds a second question about the organization's own litigation profile. The word nonlegal describes the advisory role the rule addresses, which is advice on the organization's affairs generally and not legal advice.

Leadership draws a separate limit because an officer, director, or trustee stands in a different relationship to an organization than a member or volunteer does. A volunteer gives time to the work. A person in a governing role answers for what the organization does and shares its interests and its reputation. If that organization regularly appears in the judge's court, the judge faces a bad choice each time. The judge can step aside, which sends the matter back for reassignment, or decide a dispute involving a body the judge helps run, which erodes public confidence in the court. Rule 3.7(A) already opens by making the judge's participation subject to the requirements of Rule 3.1,³ and the leadership provision adds a safeguard aimed at the organization's own litigation.

The test asks what is likely, not what has already happened. A rule that waited for the first case would act too late, because the judge would already sit on the board when that case arrived. Looking forward lets a judge decline a governing role in an organization whose profile points toward the judge's court. It also leaves the judge free to lead the great majority of civic and charitable groups, which rarely appear in court at all. A predictive test never gives a permanent answer, however. An organization that is quiet when the judge accepts a seat may later change its mission, take up litigation, or become the target of suits. The judge must therefore reassess the affiliation as its activities change and withdraw if the bar comes to apply.

Each of the two circumstances has its own subsection. The first sorts proceedings by their kind, and the second looks at their frequency, their character, and the forum in which they occur.

Proceedings Ordinarily Before the Judge

The first circumstance arises when it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge.⁴ This prong sorts proceedings by kind. It asks what sort of matters a judge on this particular court ordinarily hears, and then asks whether the organization's regular work will carry it into matters of that sort. Frequency is a separate question that the second prong handles, so nothing here depends on counting cases.

The bar is built around the kind of proceeding because of what a leadership post does. A person who helps run an organization has a stake in how it fares whenever it is engaged in a proceeding. If the organization's ordinary work produces the very kind of case the judge decides, that stake attaches to a category of matters the judge will predictably be assigned. The result is the dilemma described above: recuse again and again, or hear the matter and let the public watch a judge rule on the affairs of a body the judge governs. Barring the post at the outset is more workable than policing each case as it comes, because case-by-case review would discover the conflict only after the judge had taken the seat.

Because the rule speaks of what is likely, one predictable category of matters is enough to trigger it. The organization need not appear in the judge's court every term. It is enough that its mission points it toward a kind of proceeding the court ordinarily hears. A judge weighing an invitation therefore reads the organization's purposes, programs, and track record and asks where its work leads, rather than waiting for a first filing that would land on the docket of a judge already seated on the board.

Both organizations in that pair are charitable, both pass the sponsor question under Rule 3.7(A), and both would welcome the judge's involvement. What moved the answer was whether the organization's work generates matters of the kind the judge's court hears. The arts nonprofit clears this prong only, and a seat on its board remains subject to the second prong and to the general requirements of Rule 3.1.

The comparison is always made against the judge's own court, so one organization can be a problem for one judge and unobjectionable for another. A law-related sponsor also receives no exemption. Rule 3.7(A) gives wide room to organizations concerned with the law, the legal system, or the administration of justice,⁵ but the leadership limit applies to the same organizations the permission covers, so a legal-system organization is tested like any other.

A problem on this prong is best run by comparing two lists, which keeps the sponsor's attractive purpose from displacing the question the prong actually asks.

Candidates most often go wrong at step three, because the volume of cases is tempting to weigh. Volume belongs to the second prong, and a single predictable category of matters is enough here.

Frequent Adversary Proceedings

The second limit in Rule 3.7(A)(6) bars a judge from serving as an officer, director, trustee, or nonlegal advisor of an organization when it is likely that the organization "will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member."⁷ The first prong sorts proceedings by their kind. This prong asks how often the organization will be in court, whether it will face an opponent when it gets there, and which courts will host the dispute. Each of those three variables comes from the rule's text, and each narrows the bar, so the leadership role closes only when all three line up.

The word frequently sets the volume threshold. An organization that sues or is sued once in a long while does not meet it, because this prong guards against repetition. A single case can be handled by recusal in that case. Regular litigation makes recusal a standing feature of the judge's docket, or else leaves the judge deciding, case after case, disputes in which a body the judge helps run is one of the contending sides. As with the first prong, the test asks what is likely, so the judge weighs the organization's mission and litigation history when accepting the post and again whenever its activities change.

The phrase adversary proceedings sets the character of the engagement. The prong reaches proceedings in which another party opposes the organization and the court must choose between them, because that is the setting in which the leader of the organization would be deciding, or sitting on a court that is deciding, whether the organization prevails. An uncontested filing is different. When an organization presents a routine matter and nobody opposes it, the court is not choosing between the organization and a rival, and the judge's seat on the board creates little tension. The rule speaks of an organization being "engaged in" such proceedings without distinguishing plaintiff from defendant, so an organization that is frequently sued counts the same as one that frequently sues.

The third variable is place, and the rule gives it two parts. The first is the court of which the judge is a member. That wording points to the court as a whole, so an organization that litigates often there triggers the prong even when its cases are assigned to the judge's colleagues, since assignments change and a seat on the board has no end date. The second part reaches any court subject to the appellate jurisdiction of the judge's court, and it matters most to appellate judges. A judge on an intermediate appellate court never sees an organization's trial-level cases while they are pending, yet those cases will arrive on that judge's docket on appeal, and the judge would then be reviewing rulings in litigation brought by an organization the judge leads. Courts outside both categories are not reached by this prong, so an organization that litigates heavily only in another state's courts does not trip it, although the general requirements of Rule 3.1 still apply.

The law-related label is the usual temptation. The permission to take part in the activities of organizations concerned with the law, the legal system, or the administration of justice is the widest in Rule 3.7(A), and it is natural to assume that a legal-aid or advocacy group must therefore be safe to lead.⁸ The permission and the leadership limit answer different questions. The permission says the judge may take part in the organization's activities. The leadership limit says a judge in a governing role must decline when the organization's litigation profile will put it before the judge's own court or the courts below. Law-related organizations are in fact the ones most likely to trip this prong, because litigation is often how they pursue their missions. A legal-aid society whose lawyers defend contested cases in the judge's courts week after week fails on volume, forum, and character, and its worthy mission has no bearing on the result.

Because the prong has three variables, a problem is best run by taking them in order, which keeps an appealing mission from displacing the inquiry the rule actually makes.

Candidates most often slip at step four, because a worthy or law-related mission feels like a reason to relax the test. The mission settles only the sponsor question under Rule 3.7(A), and the litigation profile settles the leadership question.