April 22, 2004
Digest: It is not unethical for a judge to permit the display in the public areas of the courthouse of brochures promoting the services of a not-for-profit mediation corporation.
Rule: 22 NYCRR 100.2(C)(1); 100.4(C)(3) (b); Opinions 03-107; 95-21 (Vol. XIII); 95-14 (Vol. XIII); 90-40 (Vol. V).
A judge of the Family Court inquires whether the judge may permit the display of brochures promoting a not-for-profit mediation corporation in the court waiting room. The corporation provides divorce mediation for a fee, with fees reduced under certain circumstances, e.g. for low income families. Notably, the not-for-profit organization at issue was previously part of a larger community dispute resolution center recently founded as a separate organization because of the nature of its work and not because of any change in its not-for-profit status.
Section 100.2(C)(1) of the Rules Governing Judicial Conduct provides that “A judge shall not lend the prestige of judicial office to advance the private interests of others.” Section 100.4(C)(3)(b) provides that a judge may not personally participate in the solicitation of funds for fund-raising for charitable organizations or organizations devoted to the improvement of the administration of justice, nor may a judge use or permit the use of the prestige of judicial office for fund-raising for such organizations.
While it does not appear that this Committee has addressed the present situation directly, analogous circumstances have been the subject of previous inquiries. Therein, the Committee has stated that no ethical bar exists to the use of courthouse space to publicize availability of legal services for litigants, as long as it is clear that the court is not making an official recommendation of a particular provider or service. See, Opinion 95-14 (Vol. XIII); 95-21 (Vol. XIII). With respect to similar inquiries addressing for-profit organizations, the Committee has stated that a judge should not permit a private for-profit mediation service to place promotional brochures in the courthouse, (Opinion 03-107) or assist a private business firm by referring cases to it or by sending the firm’s brochure to attorneys. Opinion 90-40 (Vol. V). None of these circumstances is present.
In sum, the proposed conduct here does not raise an ethical problem for the judge. The mere existence of such brochures along side other similar materials for not-for-profit services and lists of legal services for litigants compiled by bar associations in public waiting areas - without any further endorsement by the court - - does not lend the prestige of judicial office to those organizations or amount to fund-raising as prohibited under the Rules. However, the Committee suggests that the judge or court seek the approval of the Office of Court Administration for such display prior to proceeding. For, we merely hold here that the display of such materials under the circumstances presented does not violate any rule of judicial ethics, and we express no views concerning any possible administrative considerations.