March 9-10, 2011
NOTE: This opinion has been modified in part by Opinions 15-171 and 16-153, which advise that “section 100.4(C)(3)(b)(i) does not apply to a judge’s interactions with his/her family members” (Opinion 15-171) or “to a judge’s interactions with judicial colleagues over whom he/she has no appellate or supervisory authority” (Opinion 16-153), “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” (Opinions 16-153; 15-171). This exception applies only to personally soliciting funds from a judge’s family members and judicial colleagues; it does not extend to the judge’s friends.
Digest: Under the circumstances presented, a judge may accept a gift of the admission fee for a road race from his/her sibling’s spouse.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i); 100.4(D)(5)(d), (e); Opinions 10-152; 06-114; 96-147 (Vol. XV).
A judge, who enjoys running, wishes to participate in a well-known road race, which according to the official race website, is sponsored by a not-for-profit organization. To participate in the race, runners must either have accomplished a qualifying time in a prior race or raise at least a significant sum of money that will be donated to a charity. Because the judge has not accomplished the qualifying time, he/she can participate in the race only by securing a charitable donation. The judge advises that his/her sibling’s spouse has “offered to pay the full [ ] contribution to a charity” out of “great sympathy” for the judge’s strong desire to run in a road race for which the judge simply cannot qualify. The judge asks whether he/she may accept this offer.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not, whether as a member or otherwise, personally participate in the solicitation of funds or other fund-raising activities on behalf of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit (see 22 NYCRR 100.4[C][b][i]). Although a judge may not accept all gifts, a judge may accept a gift from a relative or close personal friend “whose appearance or interest in a case would in any event require disqualification” under the Rules Governing Judicial Conduct (22 NYCRR 100.4[D][e]) and may also accept a gift from a relative or friend for a special occasion “if the gift is fairly commensurate with the occasion and the relationship” (22 NYCRR 100.4[D][d]).
The Committee has previously addressed the propriety of a judge participating as an athlete in sporting events that are organized as charitable fund-raisers, where the athlete-participants are expected to obtain financial “sponsors” for their participation. In Opinion 06-114, a judge asked whether it was permissible to participate in an annual walk to raise funds for a charitable organization dedicated to fighting a serious illness and “solicit funds from friends and relatives” to do so. The Committee advised that the judge may contribute personal funds to the charity and participate in the walk but is prohibited from soliciting sponsors or funds from any person, including friends or relatives (id.; see also Opinion 10-152). Similarly, in Opinion 96-147 (Vol. XV), a judge asked about the propriety of participating in a charitable fund-raising bicycle ride between two cities, where participants must either donate $1,500 or secure that amount in donations from others. The Committee advised that the judge’s participation as a bicyclist “is not prohibited, provided it is the judge who is contributing the required sum of $1,500. But the judge may not request contributions in connection with this event, even from colleagues or long-time friends” (id.).
As the Committee has previously advised, a judge should not personally solicit funds from any person, including relatives and long-time friends or solicit contributing sponsors (see Opinions 10-152; 06-114; 96-147 [Vol. XV]; 22 NYCRR 100.4[C][b][I]). Under the circumstances presented here, however, it appears that the judge’s sibling-in-law 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. Because payment of the race admission fee on the judge’s behalf is a gift from a relative whose appearance or interest in a case would in any event require the judge’s disqualification (see 22 NYCRR 100.4[D][e]), the judge may accept the gift from his/her sibling-in-law under the circumstances presented.