June 16, 2016
Digest: A judge may place promotional materials for a not-for-profit bar association’s upcoming educational programs on a table in the back of the courtroom.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i), (iv); 22 NYCRR 1500.21; Opinions 14-193; 14-87; 10-27; 09-09; 09-02; 07-126; 04-14; 98-107.
The inquiring judge asks whether he/she may place promotional materials for a bar association’s upcoming continuing legal education (CLE) programs on a table in the back of the courtroom, near certain commonly used litigation forms. The topics are generally relevant to cases of the type heard in the judge’s court; in fact, the judge is a panelist for one program. The judge states the programs are not fund-raising events and the admission charge merely covers the bar association’s costs.
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]). However, a judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), must not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][i]), and must not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][b][iv]).
The Committee advised that a judge may permit the display of “brochures promoting the services of a not-for-profit mediation corporation” in public areas of the courthouse (Opinion 04-14). A judge also may make available in his/her courtroom “a list of domestic violence organizations which provide legal services to victims of domestic violence,” provided the judge makes clear it is not “an official recommendation of the court” and does not recommend any particular organization (Opinion 09-02; see also Opinion 14-87). Similarly, the Committee has advised that a judge may not “endorse or promote education programs offered by a particular company” which may help defendants “earn a reduction or dismissal of pending charges,” even if “the programs are low cost to the offender” (Opinion 10-27 [judge may include the company’s contact information on a list of possible programs a defendant may consider]).
However, judges are generally “encouraged” to participate in bar association activities devoted to improvement of the law, the legal system, and the administration of justice (see e.g. Opinions 09-09; 07-126). This judge proposes to participate by making information about a bar association’s CLE programs available in his/her courtroom (cf. 22 NYCRR 1500.21 [noting the “utmost importance to members of the Bar and to the public that attorneys maintain their professional competence by continuing their legal education” throughout their legal careers]). The Committee believes this does not impermissibly promote private interests (see 22 NYCRR 100.2[C]) and is therefore permissible, provided the admission price is not so extraordinarily high and/or disproportionate as to “lead to no other conclusion” than that the programs are primarily intended as fund-raisers (see 22 NYCRR 100.4[C][b][i], [iv]).1
Accordingly, because these CLE programs are sponsored by a not-for-profit bar association and are not fund-raisers, this judge may place informational brochures or flyers for such programs on a table in the back of the courtroom along with other ethically permissible forms and materials, for the benefit of attorneys who practice in the court.
1 An admission charge “is not determinative” in determining whether an event is a fund-raiser; rather, “the Committee looks to the ‘stated intent of the organization’ as well as the surrounding circumstances” (Opinion 14-193; cf. Opinion 98-107 [paying $3,000 to attend a political dinner “can only be regarded as” a contribution, because “[t]he disparity between price and any conceivable cost is of such dimension as to lead to no other conclusion”]).