December 10, 2020
Digest: (1) A judge who objected orally and in writing to the appearance of their name in an email soliciting funds for a charitable cause need not take any further action. (2) A judge may contribute their personal funds, either alone or with a co-judge, to sponsor a family in need, and may be identified by name and title in doing so. However, the judge may not make charitable contributions in the name of the court or permit their court staff to do so.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(I), (iv); Opinions 20-132; 18-146; 18-05; 17-78; 14-117; 13-18; 12-61; 11-35; 03-137; 94-58.
The inquiring judge recently became aware that a court attorney circulated an email to other nonjudicial court staff suggesting they could all make charitable donations to sponsor or “adopt” a needy family at the holidays in the name of their respective chambers. The court attorney credited the inquiring judge with this idea, although they had never spoken about it.1 The inquiring judge objected in writing via email, with reference to prior ethics opinions about fund-raising by judges and the courts. In response to the inquiring judge’s concerns, the court attorney sent out a corrective email clarifying that “this activity is not at the behest of” the inquiring judge and referring recipients to our ethics opinions. The judge now asks two questions. First, has the judge “done enough to cure any misperception that [the judge] solicited funds on behalf of a charitable organization”? And second, may the judge participate in “adopting” a family in need, either individually or by participating in a strictly in-chambers initiative organized solely by nonjudicial chambers staff?
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Although a judge may make contributions to charitable organizations from their personal funds (see Opinion 14-117), a judge must not permit such organizations to use the prestige of judicial office to raise funds or solicit members (see 22 NYCRR 100.4[C][b][iv]) and must not personally solicit funds or participate in other fund-raising activities (see 22 NYCRR 100.4[C][b][I]). A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), and any extra-judicial activities must not be incompatible with judicial office (see 22 NYCRR 100.4[A]). Indeed, a judge’s extra-judicial activities must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-).
1. Use of the Judge’s Name
In general, a judge who learns that their name is being used improperly in connection with charitable fund-raising must object in writing (see Opinions 18-146; 17-78). Depending on the circumstances, including how and why the third party used the judge’s name, the judge may need to take some additional steps, such as requesting a retraction (see Opinions 17-78; 12-61; 11-35).
Here, the judge already sent the court attorney an email objecting to use of the judge’s name, and the court attorney promptly cooperated by sending out a curative email. We conclude the judge need not take any further action (see Opinions 18-146; 17-78).
2. “Adoption” of a Needy Family
In Opinion 03-137, we advised that “[a] judge may not ‘adopt’ a military unit in the name of the court, nor may the judge permit court employees assigned to him/her to do so, where the purpose of such activity is to raise funds for charitable purposes.” We noted that support from the judge or by court employees in the name of the court, though well-intentioned, “would be lending the prestige of the court to a particular charitable endeavor in violation of the Rules Governing Judicial Conduct” (see 22 NYCRR 100.2[C]; 100.4[C][b][I]; Opinion 94-58).
Here, too, we conclude the judge may not make a charitable contribution in the name of the court and/or chambers, nor permit their employees to do so, as the purpose likewise involves raising funds for charitable purposes and could be seen as improperly lending the prestige of the court itself to a specific charitable endeavor.2
As for the judge using their own personal funds to make charitable donations in their own name, this is clearly permissible. We have said a judge “may make charitable donations to a wide range of non-political not-for-profit entities, ... and need not conceal his/her identity as a judge in doing so” (Opinion 18-05; see also e.g. Opinions 20-132; 13-18). Indeed, although a judge “must not solicit participation from non-judges or any judges over whom he/she may have supervisory or appellate authority,” we have said a judge who donates to a fund established to create and install a public monument honoring a federal judge “may also solicit co-equal judicial colleagues to contribute” and their “names and titles may be listed with other contributors on a plaque erected with the statue” (Opinion 20-132).
Thus, we conclude this judge may contribute their personal funds, either alone or with other co-equal judges, to sponsor a family in need, and may be identified by name and title in doing so (see Opinions 20-132; 18-05). Again, this may not be done in the name of the court, but may be done in their individual names.
1 The idea of “adopting” a needy family together was floated by a member of the judge’s nonjudicial staff in an informal discussion. The email’s sender was not present for the discussion but clearly liked the idea on hearing of it.
2 We note it could also, potentially, raise concerns among members of the public as to whether public funds have been improperly redirected to benefit a specific charity.