June 12, 2014
Digest: It is ethically permissible for a judge to suggest that his/her wedding guests consider contributing to a charity of the guests’ choice in lieu of giving a wedding gift where the judge also asks the guests to omit any reference to his/her judicial title when sending the donation.
Rules: General Municipal Law §805-b; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4; 100.4(C)(3)(b)(I), (iv); 100.4(D)(5)(d); Opinions 13-134; 13-122; 13-18; 10-194; 06-114; 96-147 (Vol. XV); 89-50 (Vol. III).
A judge who is planning his/her wedding asks whether it is ethically permissible to suggest to his/her wedding guests to consider contributing to a charity of their choice in lieu of giving a wedding gift. The judge also would ask the guests to omit any reference to his/her judicial title when sending the donation.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, 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]). In particular, while a judge may engage in permissible extra-judicial activities (see 22 NYCRR 100.4), a judge must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][I]).
The Committee has advised that a judge may make a charitable contribution (see Opinions 13-134; 13-122; 13-18) but may not solicit contributions on behalf of a charitable organization or permit contributions to be made in the judge’s name (see Opinions 06-114 [judge may contribute personal funds to charity, participate in fund-raising walk, but may not solicit funds to participate]; 96-147 [Vol. XV] [judge may not request contributions to participate in charity’s fund-raising bicycle ride]). Nor, may a judge allow his/her participation in a charitable event or his/her judicial title to be used in fund-raising for the sponsoring charitable organization (see 22 NYCRR 100.4[C][b][iv] [judge shall not use or permit the use of the prestige of judicial office for fund-raising solicitation]; Opinion 06-114).
In Opinion 10-194, the Committee explained its rationale for prohibiting judges from personally soliciting funds or participating in fund-raising activities:
There are several reasons for prohibiting judges from personally soliciting funds or engaging in other fund-raising activities. One is to prevent judges from lending the prestige of judicial office to advance the private interests of an organization (see 22 NYCRR 100.2[C]). Also, such prohibition protects potential donors who may feel pressured to donate when a judge asks. Finally, it helps to prevent the appearance that a lawyer or other non-judge is attempting to curry favor with a judge, a risk that could arise in a wide variety of circumstances if a lawyer or other non-judge were to give money directly to a judge before whom he/she might later appear (cf. 22 NYCRR 100.4[D][c] [prohibiting a judge from engaging in financial and business dealings that involve the judge in frequent transactions with those lawyers or other persons likely to come before the court on which the judge serves];100.4[D] [placing restrictions on a judge’s acceptance of a gift, bequest, favor or loan]; 100.5[A] [judge may not personally solicit campaign contributions]).
In the Committee’s view, the facts in the present inquiry are distinguishable from those in Opinions 06-114 and 96-147 (Vol. XV). The event involved is a wedding to which the judge and his/her betrothed will invite family members and friends, all of whom will want to acknowledge the occasion with a gift (cf. 22 NYCRR 100.4[D][d]). Indeed, the judge is essentially doing the opposite, by discouraging wedding guests from giving any gift to the couple and asking them to instead direct their generous impulses elsewhere. And, as the judge has taken the added precaution of asking his/her guests to refrain from referencing his/her judicial title, the public cannot reasonably perceive the judge to be lending the prestige of judicial office to charities the judge him/herself might or might not support.1
Nor do the circumstances presented raise the policy concerns the Committee identified in Opinion 10-194. The inquiring judge is not using the prestige of judicial office to benefit a particular charity, because the judge is inviting the wedding guests to choose the charity they personally wish to benefit. Critically, the Rules expressly permit a judge to accept “a gift from a relative or friend, for a special occasion such as a wedding. . ., if the gift is fairly commensurate with the occasion and the relationship” (22 NYCRR 100.4[D][d]). The fact that the gift will be given to a charity, rather than to the judge, further minimizes the already slim possibility of any appearance of impropriety (see 22 NYCRR 100.2).
Therefore, it is ethically permissible for a judge to ask his/her wedding guests to consider donating to a charity of their choice in lieu of a wedding gift, where the judge also would ask the guests to omit any reference to his/her judicial title when sending the donation.
Opinion 89-50 (Vol. III) does not dictate a different result. There, the Committee advised that a judge who solemnized a marriage may, instead of accepting remuneration or a gift, suggest a contribution be made to a charity of the marital couple’s choice, but not in the judge’s honor. A judge who solemnizes a marriage acts in his/her official capacity and is compensated for doing so pursuant to statute (see General Municipal Law §805-b). The judge’s conduct in the present inquiry, that gives rise to the proposed donation, is totally personal in nature, and therefore distinguishable.
1 The Committee notes that a judge may make a charitable donation and permit the charity to acknowledge the donation (see e.g. Opinion 13-18). Ordinarily, there is no appearance that the judge is lending the prestige of judicial office to the charity, merely because, after the fact, the charity includes the judge’s name and title along with those of other contributors.