October 25, 2012
Digest: A judge may not permit a bar association to award scholarships in the judge’s name when, under the circumstances, doing so would lend the prestige of judicial office to advance private interests.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(iv); Opinions 05-79; 01-84; 99-121 (Vol. XVIII); 95-54 (Vol. XIII).
Two inquiring judges ask whether they may permit a bar association to establish and award two annual scholarships bearing their names. The judges state that the bar association would establish a special fund in the name of a retired judge and raise money for and award the two scholarships, along with a third scholarship established in the name of an attorney. The inquiring judges state that they would not participate in any fund-raising activities. They also state they would instruct the fund sponsors that they “may not designate or announce the funds as being raised for any specific scholarship” in the judges’ names, and that they “must designate or assign funds” to the scholarships in the judges’ names only “after the funds have been raised.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and must not use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][b][iv]).
It is not inherently improper for a judge to permit an entity to create a scholarship in the judge’s name, as long as the judge’s name is not used to solicit donations to fund the scholarship. For example, the Committee has previously advised that a judge may fund an award and be identified as the donor of the award (see Opinion 01-84) and may permit a law school to establish a scholarship in the judge’s name using funds the judge contributes for that purpose (see Opinion 99-121 [Vol. XVIII]). On the other hand, the Committee has advised that a judge may not permit a bar association to create a scholarship in the judge’s name and then hold a retirement dinner in the judge’s honor to fund the scholarship (see Opinion 05-79). In this regard, the Committee stated:
[p]ersons attending the event will have been solicited not merely to pay honor to the career of a distinguished jurist, but to contribute, by way of ticket price and commemorative journal, funds designated to create a scholarship in the name of the judge. It is those facts, done in the name of a sitting judge which, we believe, would constitute an improper use of the prestige of judicial office.
In the present inquiry, the judges themselves would not fund the scholarships, nor does the bar association propose to directly use the judges’ names to solicit donations to fund the scholarships, which in some respects is similar to the facts described in Opinion 95-54 (Vol. XIII). There the Committee advised that a judge may permit a charitable organization to establish a scholarship in the judge’s name for the benefit of law students, where the charitable organization “does not solicit funds on behalf of individually named scholarships but on behalf of its general scholarship fund, and only thereafter assigns such funds to individual scholarships” (id.).
However, the facts in the present inquiry are readily distinguishable from those in Opinion 95-54 (Vol. XIII). The membership of the charitable organization in Opinion 95-54 was not limited to lawyers, but included representatives from various professions. In addition, the organization had a pre-existing general scholarship fund for which it had already been raising funds for “a number of other scholarships named for individual members and/or their relatives” (see Opinion 95-54 [Vol. XIII]). Thus, because the charitable organization was continuing a previously established practice of raising monies for a pre-existing general scholarship fund, and not establishing and separately funding a new scholarship in a judge’s name, it was not using the prestige of judicial office to solicit contributions.
Here, although the bar association would not directly use the judges’ names to solicit monies for the scholarships, solicitors would inform contributors that the purpose of the special fund (named for a retired judge) is to establish three law school scholarships, two of which will be named for the inquiring, sitting judges. This connection between fund-raising and scholarships named for sitting judges would create an appearance of impropriety as the bar association would be using the prestige of judicial office to benefit its scholarship fund (see 22 NYCRR 100.2; 100.2[C]; 100.4[C][b][iv]; Opinion 05-79).
Accordingly, the inquiring judges should not permit the bar association to award scholarships in their names while they hold judicial office.