In Virginia Advisory Opinion 00-2, the Committee determined that, while judges may serve on Community Criminal Justice Boards where judicial membership is mandated by statute, the Canons nevertheless preclude judges from voting or participating in such a board's deliberations. These ethical restrictions, the Committee concluded, were required so as not to adversely affect the judges' appearance of impartiality in cases bearing some relationship to the board's activities.
In Virginia Advisory Opinion 00-3, on the other hand, the Committee concluded that a juvenile and domestic relations district court judge may not serve on the board of trustees of a juvenile group home that accepts referrals from the judge's court. The conflict of interests inherent in such service "could create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Thus, the Committee concluded, the judge's service on the group home's board would run afoul of Canons 2A, 2B, 4A and 4C.
In the situation at hand, judges are not required by statute to be on the board of LHL. Thus, the issue now before the Committee is more analogous to the situation presented in Opinion 00-3. Nevertheless, the principles involved in both prior opinions are implicated here as well.
All judges have the power to regulate the performance of the attorneys appearing in their courts. See Norfolk & Portsmouth Bar Ass'n. v. Drewry, 161 Va. 833, 836, 172 S.E. 282, 283 (1934). Pursuant to that authority, judges certainly may refer to LHL attorneys whom they believe may have a chemical dependency problem or other mental disorder. Indeed, a judge reasonably could decide to inform such an attorney that, unless he or she seeks the assistance of LHL, the judge will take or initiate appropriate disciplinary action.*
The Committee recognizes the importance of the power, and sometimes the duty, of judges to supervise and regulate the performance of attorneys appearing in their courts. See generally Canon 3D(2) (setting forth judges' disciplinary responsibilities as to attorneys). The integrity of this important judicial function would be compromised if a judge, while serving on the board of LHL, referred a problem attorney to that organization. See Canon 3E(1) (judge should recuse if impartiality "might reasonably be questioned"). Similarly, the effectiveness of this judicial function would be diminished substantially if, by choosing to become an LHL board member, a judge thereby loses the option of being able to make a referral to the organization that, in particular circumstances, may be most able to help the attorney in question.
The Committee, therefore, concludes that a judge may not serve on the board of Lawyers Helping Lawyers.
FOOTNOTE
*Pursuant to Virginia Code § 54.1-3935, moreover, courts of record have a statutory role in bar disciplinary proceedings and circuit court judges, as members of three-judge panels, are empowered to decide such matters. A referral to LHL clearly could be part of the disposition of such cases.