Digest: Subject to certain limitations, a full-time judge may serve as (1) an officer for a not-for-profit fraternal organization’s local chapter, (2) a non-legal advisor to the organization’s officers, committees, and members on matters of parliamentary procedure, and (3) chair of the organization’s scholarship committee. A judge may not raise funds for this entity by selling raffle tickets to friends, but may sell raffle tickets to family without reference to his/her judicial position.
Rules: 22 NYCRR 100.0(C); 100.0(I); 100.2; 100.2(A); 100.2(D); 100.3(E)(1)(d)-(e); 100.4(C)(3)(a); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b); 100.4(C)(3)(b); 100.4(C)(3)(b)(i), (iv); 100.4(D)(5)(e); 100.4(G); Opinions 15-118; 14-132; 114-89; 13-159; 13-40; 12-106; 12-40; 11-143; 11-125; 11-51; 11-24; 10-194; 10-152; 09-170; 09-146; 08-193; 06-114; 99-83; 97-19; 96-147; 96-82; 95-123.
The inquiring full-time judge is “an active member” of a fraternity/sorority, a not-for-profit fraternal organization whose college-educated members are “committed to constructive development of its members and to public service” involving a racial, ethnic, or cultural group to which the judge belongs. The judge asks if he/she may serve as (1) an officer for the organization’s local chapter, (2) “a consultant to the President and other Officers of the Chapter, Committees, and Members on issues of parliamentary procedure to ensure compliance with the [organization’s] Constitution and Bylaws; local chapter Rules of Order, Policies, and Procedures; and Robert's Rules of Order,” and (3) chair of the organization’s scholarship committee.1 The judge also says the entity fundraises for its scholarship and community service projects. The judge recognizes he/she may not personally participate in such fund-raising efforts generally, but asks if he/she may sell raffle tickets “to family and friends” in his/her private capacity, without reference to his/her judicial position.
A judge must always avoid even the appearance of impropriety (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]). A judge may be a member of “an organization ...dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]), but not one “that practices invidious discrimination” (id.).
Ordinarily, a judge may serve as an officer or non-legal advisor of a not-for-profit fraternal or civic organization, provided the organization is not likely to be “engaged in proceedings that ordinarily would come before the judge” or, for a full-time judge, “engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][i]-[ii]). However, a judge “shall not personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][b][i]).2 In addition, a judge must not “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][b][iv]). A full-time judge may not practice law, although he/she “may, without compensation, give legal advice to a member of the judge’s family” (22 NYCRR 100.4[G]).
General Participation in Not-For-Profit Fraternal Organization
The first set of questions, concerning the judge’s proposed involvement as an officer or non-legal advisor of a not-for-profit fraternal organization “committed to constructive development of its members and to public service” with respect to a particular racial, ethnic, or cultural group, requires an affirmative response.
Serving as an Officer. As described, the organization, though associated with one racial, ethnic, or cultural group, does not invidiously discriminate (see Opinion 96-82 [describing relevant considerations]). Rather, it is devoted to public service and improvement of its members, with no suggestion of exclusionary practices (see 22 NYCRR 100.2[D]; Opinion 96-82). Nor does the inquiry suggest the organization is likely to litigate (see 22 NYCRR 100.4[C][a][i]-[ii]). Thus, the judge may be a member and/or an officer for the entity’s local chapter, provided such activity does not interfere with the judge’s judicial duties and is not likely the organization will regularly litigate (see Opinions 15-118; 09-146; 99-83; 97-19; 22 NYCRR 100.2[D]; 100.4[C][a]).
Serving as a Non-Legal Advisor. A full-time judge may not practice law, but may be a “non-legal advisor” to a not-for-profit fraternal organization (see 22 NYCRR 100.4[C][b]; 100.4[G]). A full-time judge may be on a committee of a religious institution which “reviews Diocesan canon law and drafts appropriate revisions,” where the “sphere of activity is purely canonical and it does not give advice on any matter of civil law” (Opinion 95-123; see also Opinion 13-159 [a judge may serve on a committee that “reviews, interprets, and advises on Church matters and doctrines”]). Thus, the judge may be a non-legal advisor on parliamentary procedure issues purely internal to the organization and do not implicate any outside civil law (see id.). Thus, the judge may serve as a non-legal advisor “on matters of parliamentary procedure to ensure compliance with the [organization’s] Constitution and Bylaws; local chapter Rules of Order, Policies, and Procedures; and Robert's Rules of Order,” subject to the same limitations.3
Chairing a Scholarship Committee. The Committee has advised that a judge may be on the board of directors of a local not-for-profit organization that awards scholarships to aspiring seminarians (see Opinion 09-170); a panel that will award annual student-athlete scholarships on behalf of a hospital’s community relations board (see Opinion 08-193); or an award selection committee for an award ceremony and reception for attorneys (see Opinion 13-40). However, while the judge “may assist ... in planning fund-raising” (22 NYCRR 100.4[C][b][i]), he/she must not “personally participate” in soliciting funds (see Opinions 09-170; 08-193; 22 NYCRR 100.4[C][b][i]). Here, too, the judge may chair the nonprofit fraternal organization’s scholarship committee, provided he/she does not personally solicit funds.
Raising Funds from Friends or Family
As noted, a judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][b][i]).4 In Opinion 10-194 (citations omitted), the Committee explained:
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. 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.
The Committee has interpreted section 100.4(C)(3)(b)(i) strictly, to forbid personal solicitation from any person, “including friends, relatives, attorneys, etc.” (Opinion 06-114), and “even from colleagues or long-time friends” (Opinion 96-147). The prohibition on soliciting funds from friends or family has been reiterated numerous times (see e.g. Opinions 14-132 [“any person, including friends or relatives”]; 11-24 [“any person, including relatives and long-time friends”]; 10-152 [“any individuals including friends, relatives, or attorneys”]; see also Opinion 12-106). For example, as described in Opinion 12-40 (citations omitted):
The Committee has consistently advised that, although a judge may participate in an athletic event that is organized as a charitable fund-raiser and may donate his/her personal funds to the organization or cause, the judge must not (a) personally solicit funds from any person, including relatives and long-time friends, (b) solicit contributing sponsors, or (c) allow the fact of the judge’s participation or his/her judicial title to be utilized to raise funds for the organization or the event. There is no exception based on the judge’s proposed use of the judge’s private e-mail account or personal stationery, even if the judge does not in any way refer to his/her judicial position...
Nor, in the Committee’s view, may the inquiring judge “accept donations from co-workers or other persons” who may “become aware of [the judge’s] commitment” to raise funds for an organization or cause by participating in the fund-raising walk. Permitting judges to “accept” donations here would be an exception that effectively nullifies the rule; perversely, it could even discourage judges from openly discussing their participation in charitable athletic events for fear of creating the impression that they are engaging in a thinly veiled solicitation of funds.
Where the Committee has carved out exceptions to the ban on personal solicitation, it did so with extreme caution, and only if there is a clear and powerful motive for the giver that the public will readily recognize as completely independent of the judge’s judicial status. Thus, the Committee has advised that 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, as the “public is likely to correctly perceive this as a matter of collegiality or mutual support” (Opinion 12-106). The Committee has also advised that, despite the prohibition, a judge may nonetheless accept a generous sponsorship from a second-degree relative, where the relative “has offered the judge a gift out of ‘great sympathy’ for the judge’s strong desire to run in a road race for which the judge simply cannot qualify” (Opinion 11-24 [noting that those who do not qualify for the road race based on speed can only participate by making a significant charitable donation]).
Family. On further consideration, the Committee believes the rule that a judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][b][i]) need not apply to a judge’s interactions with his/her own family members. The public will readily appreciate that a judge’s family members will be motivated by their own familial relationship with the judge, rather than by the judge’s judicial status or the prestige of judicial office. Indeed, if anyone is almost perfectly immune from experiencing any pressure or coercion due to a judge’s judicial status, it is surely the judge’s closest family members. Nor is there any risk that soliciting funds for charity from a relative will be construed as an opportunity “to curry favor with a judge” (Opinion 10-194), when that relative’s appearance or interest in a case would in any event require the judge’s disqualification (see generally 22 NYCRR 100.3[E][d]-[e]; cf. 22 NYCRR 100.4[D][e]). Moreover, an excessively strict reading of the prohibition on personal solicitation would presumably preclude a judge from inviting family members from accompanying him/her to a charitable fund-raiser; this surely cannot have been the rules’ intent. For all these reasons, the Committee can see no risk of an appearance of impropriety (22 NYCRR 100.2) or any of the dangers described in Opinion 10-194, if this judge sells raffle tickets to his/her family members on behalf of a not-for-profit fraternal organization.5
Accordingly, prior opinions (including Opinions 14-132, 12-106, 12-40, 11-24, 10-152, and 06-114) are modified as necessary to make clear that section 100.4(C)(3)(b)(i) does not apply to a judge’s interactions with his/her family members, 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 (see 22 NYCRR 100.4[C][b][iv]).
Friends. The Committee sees no need to reconsider the prohibition with respect to friends. Family members are, in general, objectively defined by blood, marriage, adoption, and the like; whereas friendships are extremely “varied, fact-dependent, and unique to the individuals involved” (Opinion 11-125). A judge’s personal participation in raising funds from friends leaves far more room for error and a much greater risk of an appearance of impropriety, including a possible public perception of pressure or coercion. If anything, judges are likely to underestimate the influence their judicial status may bring to bear on a friend, while the public is likely to be extremely sensitive to it.
Thus, the judge may not raise money for the organization by selling raffle tickets to friends but may sell raffle tickets to family members without reference to his/her judicial position.
1 The scholarship committee chair is “heavily involved in screening, interviewing, and selecting scholarship recipients from amongst numerous high school applicants seeking scholarships to attend a college of their choice.”
2 This and other prohibitions of section 100.4(C)(3)(b) apply whether the judge is acting “as an officer, director, trustee or non-legal advisor, or a member or otherwise” (22 NYCRR 100.4[C][b] [emphasis added]).
3 Some caution may be needed if the judge is asked to review the organization’s bylaws. In Opinion 11-51, the Committee advised that a full-time judge who serves on the board of a homeowners’ association may not review the association’s bylaws, as such conduct could involve giving legal advice or participating in decisions likely to lead to litigation (see Opinion 11-51). However, a full-time judge may serve on the bylaws committee of a not-for-profit athletic club, provided that the club’s outside counsel handles legal matters for the club and further provided that the judge will not give legal advice or engage in decisions likely to lead to litigation (see Opinion 11-143; 22 NYCRR 100.4[G]).
4 A separate subparagraph provides that a judge must not “use or permit the use of the prestige of judicial office for fund-raising” (22 NYCRR 100.4[C][b][iv]).
5 Resolving an ambiguity in the definition, and “consistent with an intuitive, common-sense understanding of the phrase,” the Committee has construed the term “member of the judge’s family” to presumptively include relatives within the sixth degree of relationship (see Opinion 14-89; 22 NYCRR 100.0[C]; 100.0[I]).