May 4, 2017
Digest: (1) A judge may permit his/her court attorney to (a) host fund-raisers away from the courthouse during non-working hours to offset costs associated with the court attorney’s international adoption and (b) use personal social media accounts to promote the fund-raisers.
(2) The judge need not prohibit the court attorney from accepting donations from attorneys under Part 100, but the judge (a) must not permit any contributions to be made or fund-raising activities to occur during working hours or on court property and (b) must insulate him/her from all matters involving those attorneys.
(3) The judge may attend the court attorney’s fund-raisers and make contributions from his/her personal funds but may not assist with any solicitation.
Rules: 22 NYCRR Part 50; 100.2; 100.2(A); 100.2(C); 100.3(C)(2); 100.3(E); 100.4(C)(3)(b)(i), (iv); 100.5(C)(3); Opinions 15-14; 14-68; 12-106; 12-52; 04-119; 03-103; 97-17.
A full-time judge’s personally appointed principal court attorney and the court attorney’s spouse are adopting a child from another country. The process is very expensive, and the judge asks if he/she may permit the court attorney to host fund-raisers to offset travel and other costs. The couple would also like to post the fund-raising invitations and activities on their personal social media accounts. Several attorneys who regularly appear before the judge have heard of the situation and approached the court attorney about donating or participating in fund-raising efforts. Finally, the judge also asks if he/she may personally attend one of the fund-raising events.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not “use or permit the use of the prestige of judicial office for fund-raising” (22 NYCRR 100.4[C][b][iv]). While a judge must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C]), “it is nonetheless clear that the limitations on a judge’s extrajudicial conduct do not automatically apply to court employees” (Opinion 14-68).
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 (see 22 NYCRR 100.2[C]), the Rules Governing Judicial Conduct prohibit judges from personally participating in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][i]). However, that prohibition does not necessarily extend to a judge’s personal staff. Indeed, the Committee has advised that “[t]he prohibition against fund-raising by judges or courts does not extend ... to fund-raising by court employees,” provided it “is sufficiently separate from the court” (Opinion 04-119; cf. 22 NYCRR 100.4[C][b][iv]). For example, a judge’s personally appointed law clerk may solicit funds for a not-for-profit child care center and the United Fund, provided the activities are not conducted on court property or during working hours (see Opinion 97-17).
Here, too, the Committee believes this judge need not prohibit his/her personally appointed court attorney from engaging in non-political fund-raising activities, provided they take place away from the courthouse and on the court attorney’s own time and absent any additional factors that would create an appearance of impropriety.1 Accordingly, the judge may permit the court attorney to use personal social media to announce the family’s fund-raisers, where any donations received will be used exclusively to offset adoption expenses. The Committee trusts any such announcements or solicitations, whether on social media or otherwise, will not refer to the judge or to the court attorney’s employment with the Unified Court System, and will not specifically target only attorneys who appear before the court (see generally 22 NYCRR 100.4[C][b][iv]).
In the Committee’s view, the Rules Governing Judicial Conduct do not require the judge to prohibit the court attorney from accepting donations from attorneys. However, the judge must not permit any contributions to be made or fund-raising activities to occur during working hours or on court property (see Opinion 97-17; 22 NYCRR 100.4[C][b][iv]). The judge should also advise the court attorney to contact the Nonjudicial Ethics Helpline (1-888-28-ETHIC) for further guidance on his/her obligations under the Rules Governing Conduct of Nonjudicial Court Employees (22 NYCRR Part 50).
If the court attorney’s family accepts donations from attorneys who appear before the court, the judge must insulate the court attorney from matters involving those attorneys (cf. Opinion 15-14 [“Ordinarily, ... a judge’s impartiality cannot reasonably be questioned based solely on his/her law clerk’s conflict; instead, it is generally sufficient to insulate the law clerk as needed”]). Accordingly, the judge should instruct the court attorney to keep the judge apprised of any such donations.
Concerning the judge’s attendance at an upcoming fund-raising event, a judge may generally attend charitable fund-raisers and make contributions to any permissible charity or not-for-profit organization (see e.g. Opinion 12-52; 22 NYCRR 100.4[C][b][i]). A judge also may contribute to a fund created on behalf of a Legal Aid Society attorney who has been seriously injured in an accident (see Opinion 03-103) or to a judicial colleague who suffered devastating losses to his/her home and personal possessions (see Opinion 12-106). Here, too, the judge’s unadvertised presence at his/her court attorney’s fund-raiser would not create an appearance of impropriety but rather would correctly be perceived as a matter of collegiality. Accordingly, the judge may attend the court attorney’s fund-raisers and make contributions from his/her personal funds but may not assist with any solicitation (see generally 22 NYCRR 100.4[C][b][i],[iv]).
1 By contrast, a judge must “prohibit members of the judge’s staff who are the judge’s personal appointees” from “personally soliciting funds in connection with a partisan political purpose or personally selling tickets to or promoting a fund-raising activity of a political candidate, political party, or partisan political club” (22 NYCRR 100.5[C]).