June 14, 2012
NOTE: This opinion has been modified in part by Opinions 15-171 and 16-153, which advise that “section 100.4(C)(3)(b)(i) does not apply to a judge’s interactions with his/her family members” (Opinion 15-171) or “to a judge’s interactions with judicial colleagues over whom he/she has no appellate or supervisory authority” (Opinion 16-153), “provided the judge makes no reference to his/her judicial office and does not otherwise lend the prestige of judicial office to his/her solicitations” (Opinions 16-153; 15-171). This exception applies only to personally soliciting funds from a judge’s family members and judicial colleagues; it does not extend to the judge’s friends.
Digest: A trial judge may invite other trial judges, who are not subject to his/her supervision, to make voluntary donations to a relief fund set up for a judicial colleague who suffered devastating losses to his/her home and personal possessions. The funds may then be given as a gift to the receiving judge, subject to any applicable reporting requirements.
Rules: 22 NYCRR pt 100, Preamble; 100.2; 100.2(A); 100.2(C); 100.3(E); 100.4(C)(3)(b)(i), (iv); 100.4(D)(1)-(5); 100.4(D)(5)(h); 100.4(H)(2); 100.5(A)(2); 100.5(A)(5); Opinions 11-24; 10-152; 08-156; 06-114; 00-73 (Vol. XIX); 00-41 (Vol. XIX); 99-79 (Vol. XVIII); 97-26 (Vol. XV); 96-147 (Vol. XV); 96-83 (Vol. XIV); 96-19 (Vol. XIV); 92-07 (Vol. IX).
A full-time trial judge asks whether he/she may invite his/her judicial colleagues on the trial bench to donate to a relief fund established for a colleague who suffered devastating losses to his/her home and personal possessions. This Committee believes this invitation is ethically permissible for the inquiring judge.
A judge must avoid impropriety and its appearance in all the judge’s activities (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]).
To minimize the risk of disqualifying conflicts (see generally 22 NYCRR 100.3[E]) and the perception that a judge is lending the prestige of judicial office to advance private interests of the judge or others (see 22 NYCRR 100.2[C]), the Rules Governing Judicial Conduct greatly restrict a judge’s ability to personally solicit funds. For example, a judge may not personally participate in the solicitation of funds or other fund-raising activities for a not-for-profit organization (see 22 NYCRR 100.4[C][b][i]), must 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]), and may not, even as a judicial candidate, personally solicit campaign contributions (see 22 NYCRR 100.5[A]; 100.5[A]).
Nonetheless, the Rules Governing Judicial Conduct “are rules of reason” which must be applied “in the context of all relevant circumstances,” with the goal of “establishing and maintaining high standards of judicial and personal conduct” (22 NYCRR pt 100, Preamble). In the Committee’s view, it would be unreasonable to interpret the Rules as barring the proposed invitation to judicial colleagues to donate for the purpose the inquiring judge describes (cf. Opinion 99-79 [Vol. XVIII]).
Preliminarily, the Committee notes that there is no risk of an appearance of coercion, as the inquiring judge proposes to solicit funds only from other judges over whom he/she has no appellate or supervisory authority. In the somewhat analogous circumstance of membership solicitation, which is ordinarily prohibited (see 22 NYCRR 100.4[C][b][iv]), the Committee has advised that a judge may permit a cultural and ethnic organization to use the judge’s name in inviting other judges to join the organization, where the judge “does not exercise appellate or supervisory authority over other judges to whom the invitations will be sent” (Opinion 97-26 [Vol. XV]); may solicit judicial colleagues to become members of a fraternal organization composed of persons in government of a particular ethnic group, but may not solicit membership by others (see Opinion 96-19 [Vol. XIV]); may solicit judicial colleagues to become members of a county bar association (see Opinion 00-41 [Vol. XIX]); may solicit other judges to join a judicial association (see Opinion 92-07 [Vol. IX]); and may solicit other judges to join an “Inns of Court” organization which is “designed to improve the skills, professionalism and ethics of the bench and bar,” but may not solicit attorneys to join (Opinion 08-156).
Nevertheless, the Committee has previously advised that Section 100.4(C)(3)(b) “does not contain any exception” to the prohibition against judges soliciting funds or engaging in other fund-raising activities and that “[i]t would therefore be inappropriate for a judge to solicit other judges for contributions to charitable causes” (Opinion 96-83 [Vol. XIV]). In that matter, the judge wished to solicit pledges supporting his/her participation in an athletic event, the proceeds of which would aid cancer research (see id.). The Committee has subsequently reaffirmed this conclusion on several occasions. As summarized in Opinion 11-24:
The Committee has previously addressed the propriety of a judge participating as an athlete in sporting events that are organized as charitable fund-raisers, where the athlete-participants are expected to obtain financial “sponsors” for their participation. In Opinion 06-114, a judge asked whether it was permissible to participate in an annual walk to raise funds for a charitable organization dedicated to fighting a serious illness and “solicit funds from friends and relatives” to do so. The Committee advised that the judge may contribute personal funds to the charity and participate in the walk but is prohibited from soliciting sponsors or funds from any person, including friends or relatives (id.; see also Opinion 10-152). Similarly, in Opinion 96-147 (Vol. XV), a judge asked about the propriety of participating in a charitable fund-raising bicycle ride between two cities, where participants must either donate $1,500 or secure that amount in donations from others. The Committee advised that the judge’s participation as a bicyclist “is not prohibited, provided it is the judge who is contributing the required sum of $1,500. But the judge may not request contributions in connection with this event, even from colleagues or long-time friends.”
Although the present inquiry likewise involves fund-raising for a charitable purpose, it differs from these prior Opinions in one very significant respect. That is, the solicitation proposed in the present inquiry is not likely to create a public perception that the judiciary itself has singled out a particular educational, religious, charitable, cultural, fraternal or civic organization to benefit from internal solicitation within the court (see 22 NYCRR 100.2[C]). To the contrary, the public is likely to correctly perceive this as a matter of collegiality or mutual support, i.e., colleagues at a workplace, motivated by kindness and caring, helping each other in a time of distress.
Accordingly, the proposed internal solicitation for the benefit of a colleague is in fact analogous to that previously approved in Opinion 99-79 (Vol. XVIII). In Opinion 99-79 (Vol. XVIII), a judge who was the chair of a judicial district’s gender fairness committee wished to request a fixed and nominal sum from his/her judicial colleagues in a particular courthouse, to finance “essay prizes/awards” and refreshments for an upcoming court-sponsored “Bring Your Child to Work Day” program. The Committee advised that this “request for a minimal sum to cover the cost of a singular and specific court-sponsored program taking place in the courthouse” was permissible (id.).1 Although the fund-raising contemplated by the present inquirer would necessarily be more open-ended, commensurate with the devastating property losses suffered by the judges’ colleague, the Committee nonetheless believes it is permissible for the reasons stated.2
Finally, the Committee notes the inquiring judge (and any judicial colleagues who may choose to contribute to the relief fund) will not be putting the recipient judge in an awkward ethical position by presenting him/her with the fruits of their generosity. To the contrary, a judge may accept a gift if “the donor is not a party or other person who has come or is likely to come ... before the judge” (22 NYCRR 100.4[D][h]), subject to the applicable reporting rules (see 22 NYCRR 100.4[H]).
Therefore, under these circumstances, the Committee concludes the inquiring judge may solicit a voluntary contribution from judicial colleagues for the purpose stated, and the recipient may accept the gift, subject to the rules of reporting gifts.
1 The amount requested from each judge was five dollars (see Opinion 99-79 [Vol. XVIII]).
2 Similar reasoning may also implicitly underlie the Committee’s advice that judges who are serving on a committee that is organizing a dinner to honor a retiring judge may permit their names to appear on the committee’s letterhead for letters soliciting attendance at the event, even though the price includes the cost of the dinner and “the additional cost of a gift” to the retiring judge (see Opinion 00-73 [Vol. XIX]).