Advisory Opinion 2021-001
Part 1607 Conflicts for Judge Nominated to a Grantee Governing Body
August 31, 2021
May a local judge serve on the governing body of an LSC grantee in Arizona when that judge presides over eviction and landlord-tenant cases in a court in which the grantee regularly appears?
No, a judge that presides over cases in which a grantee regularly appears has a prohibited institutional conflict and cannot serve on the grantee’s governing body. Section 1607.3(h)(3) of the LSC regulations prohibits the appointment to a grantee’s governing body of any individual who has “institutional conflicts of interest with the recipient or the recipient's client community . . . .” Rule 3.7 of both the ABA Model Code of Judicial Conduct and the Arizona Code of Judicial Conduct prohibit judges from serving as officers of nonprofit organizations that “will be engaged in proceedings that would ordinarily come before the judge” or that “will frequently be engaged in adversary proceedings in the court of which the judge is a member . . . .” Thus, this situation presents an institutional conflict preventing the judge from serving on the grantee’s governing body under Part 1607.
Background and Analysis
A county bar association in Arizona nominates people for the board of directors of an LSC grantee. They are considering appointment of a local judge who presides over evictions and other landlord-tenant cases. The grantee’s staff have appeared before this judge on many cases in the past and continue to appear before him in evictions on a regular basis. These proceedings are adversarial with the judge and attorneys for each party having separate and distinct roles. Attorneys appearing in this court may appeal cases to higher courts to seek reversals.
Part 1607 of the LSC regulations sets rules for the governing bodies of LSC grantees. 45 C.F.R. Part 1607. Section 1607.3(h)(3) provides that grantees must work with appointing organizations to ensure that: “Appointees do not have actual and significant individual or institutional conflicts of interest with the recipient or the recipient's client community that could reasonably be expected to influence their ability to exercise independent judgment as members of the recipient's governing body.” In particular, LSC and LSC grantees must ensure “the protection of the integrity of the adversary process from any impairment in furnishing legal assistance to eligible clients.” 42 U.S.C. § 2996f(a)(1).
Both the American Bar Association (ABA) and the Arizona Supreme Court have addressed the question of a judge serving on the governing body of an organization that appears regularly before the judge or the court on which the judge serves. Rule 3.7(A)(6) of the Arizona Code of Judicial Conduct prohibits a judge from “serving as an officer, director, trustee, or nonlegal advisor of [a nonprofit] organization or entity” when:
it is likely that the organization or entity:
(a) will be engaged in proceedings that would ordinarily come before the judge; or
(b) 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.
The same language appears at Rule 3.7 of the ABA Model Code of Judicial Conduct. These rules recognize that an institutional conflict exists between a judge and lawyers who appear before that judge or in the same court in which the judge presides.
Accordingly, that same institutional conflict prevents a judge in these circumstances from serving on the governing body of an LSC grantee that regularly appears before the judge or in the same court.
Part 1607 of the LSC regulations precludes service on the governing body of a grantee for a judge who presides over eviction and landlord-tenant cases in a court in which the grantee regularly appears. Consistent with both the ABA and Arizona codes of judicial conduct, this situation presents an institutional conflict prohibited under § 1607.3(h)(3). For any questions about the Part 1607 requirements, applicability, or waivers, please contact Mark Freedman, Senior Associate General Counsel, at firstname.lastname@example.org.
WILL A. GUNN
Vice President for Legal Affairs and General Counsel
Senior Associate General Counsel