March 12, 1996
Under the specific circumstances presented, the formation of a fund, to
assist the inquiring judge in the payment of legal fees arising out of
the commencement of a formal investigation of the judge by the State Commission
on Judicial Conduct, is ethically permissible, subject to certain limitations,
restrictions and conditions.
22 NYCRR 100.1; 100.2(A),(B),(C).
The inquiring judge states that he is under investigation by the New York
State Commission on Judicial Conduct. Extraordinary publicity has surrounded
the matter, elected public officials have called for the judge's removal
from the bench, and, beyond that, have said they will cause the matter
to be brought before the New York State Senate in the event the Commission
determines not to have the judge removed from office. The judge also says:
Counsel has advised me that the cost of my defense is such that it is simply beyond my financial means. Many friend, acquaintances and professional colleagues have expressed an interest in assisting in my defense and some have spoken of forming a defense fund to enable me to properly defend against these charges. While I would not know who contributed to this fund, I bring this matter to your attention nevertheless for an advisory opinion as to whether, under these extraordinary and unprecedented circumstances, the formation of such a fund on my behalf would run afoul of any judicial ethic ruling.
In the unusual circumstances disclosed, there is, in principle, no ethical objection to forming a defense fund to assist the judge in meeting these allegations. The more sensitive ethical questions, rather, arise in establishing safeguards related to how the funds will be sought, preserved, and spent.
As the judge recognizes, the judge may not know the contributors' identities, and appropriate steps are required to shield the judge from acquiring such knowledge. Furthermore, the judge may take no part whatsoever in soliciting any contributions; and, when the funds are eventually disbursed as intended, they must go directly to defense counsel and not to the judge. Any excess funds must be returned to the donors pro rata.
These requirements are not intended as exhaustive. Rather, they are intended to express in the most basic terms the requirement that the utilization of such a fund must at all times be governed by the necessity of protecting the integrity and independence of the judiciary and avoiding the potential for favoritism or the public perception of favoritism. (See 22 NYCRR 100.1; 100.2[A][B][C].)
Furthermore, this opinion should not be read to apply to any situation wherein a judge is accused of misconduct before the Commission. Moreover, it does not address such issues as whether the donors' names are subject to public inspection, whether receptions with the judge in attendance may be held to raise these funds, or any other issues not specifically addressed herein. The judge is cautioned that this opinion is not to be considered a blanket authority to create a fund without strict adherence to all applicable ethical rules. At this early stage of this episode, to view the matter more comprehensively would involve this Committee in unwarranted and speculative assumptions.
Therefore, under the unique circumstances presented, a fund may be created to assist the judge to pay legal fees arising out of the described investigation by the Commission, subject to the limitations, restrictions, and admonitions stated above.