Opinion 22-175

December 15, 2022

Digest:         A judge may participate in a not-for-profit entity’s “backpack program” which provides a personalized gift to each adoptee and/or adoptive parent following a finalized adoption.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i), (iv); Opinions

                   08-177; 02-77.

Opinion:

         The inquiring judge asks whether their court may participate in a not-for-profit foundation’s “backpack program” for adoptions. As described, for each adoption that is finalized, the program will provide: (1) a backpack customized with the adoptee’s initials and bearing the foundation’s name and logo, (2) a stuffed toy animal with the same inscription, and (3) a fleece blanket. The foundation may also provide a tote bag for the adopting parent(s) with the same inscription. The court’s participation in this program would not be used for fund-raising or for commercial purposes, and none of the gift items bears the logo of any commercial entity.

A judge must always avoid any appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner 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 private interests (see 22 NYCRR 100.2[C]). Therefore, a judge must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]).

We have said that a judge may offer nominal gifts as rewards to participants in a problem-solving court when those items do not advance a commercial interest (see Opinion 08-177 [a judge may distribute novelty items that do not bear the distributor’s name]; cf. Opinion 02-77 [a judge may not distribute gifts from commercial enterprises such as movie tickets or coupons for a fast-food restaurant]). The inscriptions on the items in the “backpack program” are those of the foundation, not a business entity, alleviating any concern that the court could be seen as lending judicial prestige to advance private commercial interests. Further, as proposed, no gifts or benefits would be provided to the judge or to court staff, as the court would act simply as an intermediary for the not-for-profit foundation’s gift to the adoptees and adoptive parents. Since the program does not involve any impermissible commercial, fund-raising, or political activity, and is unlikely to create any appearance of impropriety, the judge’s participation is ethically permissible.