Opinion 18-54

March 29, 2018

Digest:         Where a not-for-profit entity provides detailed biographies of both directors on a website, the listing of the judge’s name and the heading of the judge’s biography may include the judge’s judicial title if the listing and heading of the other director’s biography includes his/her comparable title.

Rules:          22 NYCRR 100.2; 100.2(A); 100.29(c); 100.4(C)(3)(b)(iv); Opinions 15-219; 11-136.

Opinion:

         The inquiring judge, who serves on the board of directors for a not-for-profit charitable organization, asks about proper appearance of the two directors’ names, titles and biographies on the organization’s website. The judge’s name and the name of the second director are listed on the organization’s website along with a biography of each director. The judge proposes to list his/her name with the title “Hon.,” just as the other director uses the title “Dr.”

         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]). Among other restrictions, a judge who is an officer, director or trustee of a not-for-profit organization (22 NYCRR 100.4[C][3][b][iv]):

shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation, but may be listed as an officer, director or trustee of such an organization. Use of an organization’s regular letterhead for fund-raising or membership solicitation does not violate this provision, provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge’s judicial designation.

         Clearly, a judge who is a director of a not-for-profit organization may permit his/her name to be listed along with the other directors on the organization’s website (see Opinion 11-136). However, we have not previously considered whether the judge’s judicial designation may be listed on such page.

         We have previously advised that where a judge appears on a not-for-profit organization’s regular letterhead as a board member, the judge may also permit the organization to include his/her name along with the other board members on the organization’s fund-raising invitations “as long as the content of the list is the same, even if its formatting is not identical, unless the specific format reasonably creates an impression that the board members collectively and/or the judge individually are personally soliciting funds or personally inviting people to attend the fund-raiser” (Opinion 15-219).

         Likewise, we do not wish to create “a trap for the unwary” here, with respect to an otherwise permissible listing of directors on an organization’s website, and we continue to believe trivial formatting differences should not render substantially similar conduct unethical. Again, as we noted in Opinion 15-219, “Section 100.4(C)(3)(b)(iv) expressly permits judges to be listed as directors on the organization’s fund-raising communications (as part of the regular letterhead), even though the public could potentially infer that each listed director supports the organization’s fund-raising request.”

         We believe there is no greater appearance of impropriety here, in a non-fund-raising context, where all the directors’ names are listed on the organization’s website and “the list - even if not identically formatted - is still essentially the functional equivalent of the organization’s regular letterhead” (id.).

         Accordingly, where a not-for-profit entity provides detailed biographies of its only two directors on a website, the listing of the judge’s name and the heading of the judge’s biography may include the judge’s title if the listing and heading of the other director’s biography includes his/her comparable title. This is permissible even if the formatting is not identical, unless the specific format reasonably creates an impression that the board members collectively and/or the judge individually are personally soliciting funds or improperly using the prestige of judicial office to advance the organization’s private interests (see Opinion 15-129; 22 NYCRR 100.2[C]).¹ Thus, on the facts presented, where the only other director is listed with a comparable title (“Dr.”), the judge may likewise be listed with his/her judicial title (“Hon.”).

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¹ We have previously advised that a judge may be listed along with the other directors on a not-for-profit organization’s website, “even if the border of each page of the website contains links that solicit donations” (Opinion 11-136).