Opinion 23-240
February 1, 2024
Digest: A full-time judge may not perform as a volunteer pianist during a charitable fund-raiser.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); Opinions 22-79; 20-57; 19-09; 09-192/09-231; 98-155; 98-62; 92-79.
Opinion:
The inquiring full-time judge volunteers with a not-for-profit organization for theatre education. The organization’s annual fund-raising dinner includes brief tribute performances to the honorees over the course of the evening. The judge asks if it is ethically permissible to be the unadvertised and unpaid piano accompanist during these tribute performances. The judge’s name and judicial title would not be mentioned, and the judge’s participation would not be advertised.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not cast doubt on their capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Although a judge may assist a not-for-profit cultural or fraternal organization in “planning fund-raising,” the judge may not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]). Nor may a judge permit the use of the prestige of judicial office for fund-raising or membership solicitations (see 22 NYCRR 100.4[C][3][b][iv]).
We have advised that a judge may not perform in a rock band’s annual benefit concert, even if the judge’s name and judicial status will be omitted from advertisements (see Opinion 22-79). Indeed, we have, on several occasions, been called to give guidance regarding potential performances by judges at events organized by not-for-profit organizations. Such performances are not permissible where the event is a fund-raiser (compare Opinions 20-57 [judge may not perform in play as part of fund-raiser for religious organization]; 92-79 [judge may not make cameo appearance in play for charitable fund-raiser]; with Opinions 19-09 [judge may perform first-person story of judge’s childhood or cultural background for not-for-profit organization provided “the show is not a fund-raiser”]; 98-155 [judge may perform in not-for-profit organization’s presentation of songs from operetta, provided performance is not fund-raising event]).[1]
Therefore, the judge’s proposed performance as a volunteer pianist during a fund-raising event is not permissible.
[1] We note that Opinion 98-62 applies only to a part-time judge whose services as a musician “constitut[e] employment” such that performing for free “could be construed as” a contribution to the entity. A full-time judge, such as the inquiring judge here, may not be “engaged in the business of providing musical performances” (Opinion 09-192/09-231).