June 16, 2011
Digest: A judge who is treasurer of a magistrates association may notify its members that they must pay their dues or the admission price for an association function, and may direct that such payments be sent to the judge’s attention.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3); 100.4(C)(3)(b)(I); 100.4(C)(3)(b)(iv); 100.4(D)(1)(C); 100.4(D)(5); 100.5(A)(5); Opinions 10-68; 08-156; 01-28; 00-41 (Vol. XIX); 96-19 (Vol. XIV); 92-07 (Vol. IX); 91-116 (Vol. VIII).
A part-time town/village justice who is secretary/treasurer of a county magistrates association asks whether he/she may solicit its members to pay annual dues and the cost to attend the association’s annual dinner, and collect these funds. The judge advises that the members are current judges, including some part-time judges who also are private attorneys, and former judges.
A judge must avoid impropriety and its appearance (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge may assist a not-for-profit organization in planning fund-raising and may participate in managing and investing the organization’s funds, but is prohibited from personally participating in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][I]). A judge also may not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][b][iv]).
The Committee previously has advised that a judge may serve as secretary-treasurer of a county magistrates association but may not personally solicit membership or dues from non-judge members (see Opinion 91-116 [Vol. VIII]). The Committee also has advised that a judge may serve as treasurer of a county bar association when the membership includes attorneys who appear in the judge’s court, but the judge’s name must not be used in connection with soliciting dues (see Opinion 10-68).
There are several reasons for prohibiting judges from personally soliciting funds or engaging in other fund-raising activities. One is to prevent judges from lending the prestige of judicial office to advance the private interests of an organization (see 22 NYCRR 100.2[C]). Also, such prohibition protects potential donors who may feel pressured to donate when a judge asks. Finally, it helps to prevent the appearance that a lawyer or other non-judge is attempting to curry favor with a judge, a risk that could arise in a wide variety of circumstances if a lawyer or other non-judge were to give money directly to a judge before whom he/she might later appear (cf. 22 NYCRR 100.4[D][c] [prohibiting a judge from engaging in financial and business dealings that involve the judge in frequent transactions with those lawyers or other persons likely to come before the court on which the judge serves];100.4[D] [placing restrictions on a judge’s acceptance of a gift, bequest, favor or loan]; 100.5[A] [judge may not personally solicit campaign contributions]).
However, a current or former judge who joins a county magistrates association does so knowing he/she must pay dues to be a member. Members also fully expect to pay a price set by the association to attend certain association functions such as an annual dinner. The judge who serves as treasurer does not exercise discretion either as to the amounts due or the consequence of non-payment. Typically, a group of leaders, acting on behalf of the entire membership, determines the cost of dues or attendance at an association function. For all of these reasons, the potential for coercion, should a judge who is the treasurer of a county magistrates association notify members that payments they have agreed and expect to make are due and payable, is not an issue.
In light of the foregoing, the Committee now concludes that a judge who is the treasurer of a county magistrates association may notify association members when they are required to pay their dues or the admission price to attend an association function and to direct that such payments be sent to his/her attention. The fact that some members of the magistrates association in question are lawyers or retired judges does not warrant a different result.1 Because the association members are judges or former judges, the elements of coercion or impropriety do not arise (see Opinions 08-156 [a judge may solicit other judges to join a County Inn of Court, but may not solicit attorneys to join]; 00-41 [Vol. XIX] [a judge may solicit judicial colleagues to become members of a county bar association]; 96-19 [Vol. XIV] [a judge may solicit judicial colleagues to become members of the specified fraternal organization but may not solicit membership by others]; 92-07 [Vol. IX] [judges who are members of a judicial association may solicit other judges to join]). However, the judge/treasurer may do so using association letterhead only and may not use his/her judicial stationery.
The Committee is aware that some organizations routinely include requests for donations to support the organization’s cost to operate in most if not all correspondence sent to the organization’s membership. However, where a judge/treasurer is soliciting dues payments or payments for attending special events, no such request for additional donations is permitted (see NYCRR 100.4[C][b][I]).
This Opinion is limited to judges who serve as treasurers of county magistrates associations and does not extend to judges who serve as treasurers of other educational, religious, charitable, cultural, fraternal or civic organizations as the memberships of such organizations are not devoted to the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C]; Opinion 01-28).
Nor does this opinion modify the Committee’s prior Opinion 10-68 in which the Committee advised that a judge may serve as treasurer of a county bar association and, in that capacity, may issue checks to pay bills and may accept – but not solicit – dues from members of the association. Because the overwhelming majority of bar association members are practicing attorneys who are not current or former judges, there is at least a potential appearance of coercion when a judge requests the payment of money from a non-judge and a potential appearance of impropriety when a judge requests the payment of money from a lawyer who may appear in the judge’s court (see Opinions 08-156 [a judge may solicit other judges to join a County Inn of Court, but may not solicit attorneys to join]; 96-19 [Vol. XIV] [a judge may solicit judicial colleagues to become members of the specified fraternal organization but may not solicit membership by others]).
1 To the extent that Opinion 91-116 (Vol. VIII) holds or suggests that a judge who serves as treasurer of a county magistrates association may not solicit dues from members who are (I) part-time attorney/judges or (ii) former judges who are now attorneys, it is hereby modified consistent with this opinion.