June 13, 2013
Digest: A not-for-profit foundation whose members are almost exclusively attorneys, and which is devoted to improvement of the law, the legal system and the administration of justice, is a “bar association” for purposes of the rule permitting judges to be speakers and guests of honor at bar association fund-raising events.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i)-(iv); Opinions 08-156; 06-117; 98-50 (Vol. XVI).
The inquiring judge states that the Chief Judge plans to establish an advisory body that will make recommendations on issues such as expanding legal services to the poor, promoting innovation in the courts, and educating the public about the importance of a properly-funded judiciary. A newly created tax-exempt foundation, whose members will “almost exclusively” be lawyers, will raise funds to support the work of the advisory body, support other programs related to the administration of justice, research and develop policy recommendations for the courts, and organize and finance educational programs and other events for the public and the legal community.1 The inquiring judge asks: “Is the [f]oundation, comprised almost exclusively of attorneys and devoted to the improvement of the law, the legal system, and the administration of justice ... a ‘bar association’ for purposes of Section 100.4(C)(3)(b)(ii) of the Rules, such that sitting judges could be speakers, participants, and guests of honor at fund[-]raising events held by the [f]oundation?”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may assist a not-for-profit organization in “planning fund- raising” (22 NYCRR 100.4[C][b][i]), and may make recommendations to public and private fund-granting organizations on projects and programs concerning the legal system or the administration of justice (see 22 NYCRR 100.4[C][b][iii]), but must not personally participate in the solicitation of funds, use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][b][i], [iv]), or otherwise lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Although a judge ordinarily “may not be a speaker or the guest of honor at an organization’s fund-raising events,” an exception applies if the organization is a “bar association” (see 22 NYCRR 100.4[C][b][ii]).
This Committee has adopted “an inclusive definition of ‘bar association’ so as to encompass a wide variety of legal organizations composed of members of the bar whose purpose is to promote and improve the legal system and the administration of justice” (Opinion 98-50 [Vol. XVI]). Thus, the organization “need not be formally organized as a bar association” to fall within the exception to the rule, nor need its members be exclusively attorneys, provided that its membership consists “primarily of attorneys” (Opinion 06-117). Applying this standard, the Committee has advised that the Historical Society of the Courts of the State of New York functioned as a bar association inasmuch as it is comprised overwhelmingly of lawyers and judges and its purpose is mainly to educate the public as well as members of the judiciary and bar (see Opinion 06-117). The Committee has also advised that the Inns of Court, an organization that is “designed to improve the skills, professionalism and ethics of the bench and bar,” constitutes a “bar association” within the meaning of the Rules (Opinion 08-156).
Here, too, under the circumstances presented, the foundation “meets the broad criteria the Committee has adopted to define a bar association” (Opinion 08-156), and therefore judges may not only attend, but may also be speakers and guests of honor at the foundation’s fund-raising events (see 22 NYCRR 100.4[C][b][ii]).
Of course, even as speakers or guests of honor, judges may not personally participate in the solicitation of funds or other fund-raising activities, or permit fund-raising on court property (see Opinion 06-117 [noting that “[a]ny involvement that would be seen by the public as fund-raising by the court system itself is also prohibited”]).
1 The inquiring judge notes that the foundation will not conduct fund-raising on court property or using court resources, and none of its members will be judges.