Opinion 25-41
March 27, 2025
Digest: A court attorney-referee who is a member of a not-for-profit community chorus: (1) may not sell tickets to fund-raising events to friends or members of the public, but may sell tickets to family members; (2) may serve on the entity’s board of directors and assist in planning fund-raising activities, provided he/she is not personally involved in soliciting funds; and (3) may not perform in fund-raising concerts.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.6(A); Opinions 24-120; 23-240; 23-213; 23-140; 22-79; 21-109; 21-47; 20-57; 19-136; 01-109; 92-79.
Opinion:
The inquiring court attorney-referee is a member of a community-based chorus, organized as a not-for-profit cultural, civic or charitable organization, which provides “education and advocacy for the LGBTQIA+ community, mainly through music and art.” The referee asks if he/she may sell tickets to the organization’s fund-raising events and serve on its board of directors.
As quasi-judicial officials, court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their duties and must otherwise use the Rules as guides to their conduct “so far as practical and appropriate” (22 NYCRR 100.6[A]). A judge must always avoid even the appearance of impropriety and act in a matter that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge may participate in extra-judicial activities that are compatible with judicial office and do not cast reasonable doubt on the judge’s impartiality, detract from dignity of office, or interfere with judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge may be an officer or director of a not-for-profit educational, charitable, cultural, fraternal, or civic organization, provided it is unlikely to be engaged in proceedings that would ordinarily come before the judge (see 22 NYCRR 100.4[C][3][a][i]) and, if the judge is full-time, it is also unlikely to be regularly engaged in adversarial proceedings “in any court” (22 NYCRR 100.4[C][3][a][ii]). A judge “may assist” such an organization in “planning fund-raising” but must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]). Likewise, a judge may not “use or permit the use of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).
1. Selling Tickets to Fund-Raisers
A judge or quasi-judicial official may not personally participate in fund-raising, and thus may not sell tickets to fund-raising events (see e.g. Opinions 22-79; 01-109). We have recognized a narrow exception for family members based on the “clear and powerful motivation” of the familial relationship and the judge’s unambiguous disqualification from hearing their cases (Opinion 22-79).
Accordingly, the inquirer may not sell tickets to the organization’s fund-raising concerts to friends or other members of the public, but may sell tickets to “family members within the sixth degree of relationship without reference to [his/her quasi-judicial] position” (id. [citation and internal quotation marks omitted]).
2. Service on the Board of Directors
Subject to certain restrictions, a judge may serve on the board of not-for-profit organizations that provide community-based educational programs (see e.g. Opinions 23-213 [educational and cultural programs connected with local park]; 21-109 [educational programs for children and adults with autism]). A judge may also “serve on boards of a wide variety of not-for-profit arts-related organizations” (Opinion 19-136) or “not-for-profit organizations committed to promoting and raising awareness for certain common interests” (Opinion 21-47). As always, the restrictions include a broad prohibition on personal participation in fund-raising activities (see e.g. Opinion 24-120). For example, a judge may not post announcements about an organization’s fund-raising events on social media to generate awareness (see Opinion 23-140).
The inquirer may likewise serve on the board of this not-for-profit organization and assist in “planning fund-raising,” provided he/she does not personally participate in soliciting funds or other fund-raising activities (22 NYCRR 100.4[C][3][b][i]) and does not permit the use of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]).[1]
3. Performance at Fund-Raising Concerts
We have advised that a judge may not perform in a rock band’s annual benefit concert, even if the judge’s name and judicial status will be omitted from advertisements (see Opinion 22-79); may not perform as a volunteer pianist during a charitable fund-raiser (see Opinion 23-240); may not “take an acting part” in a theatrical performance to raise funds for his/her house of worship (see Opinion 20-57); and may not make a “cameo appearance” in a play which is a charitable fund-raising event (see Opinion 92-79).
Thus, we conclude that the inquiring court attorney-referee should perform only in events that are not fund-raisers. He/she may not perform in fund-raising concerts.
[1] For completeness, we note that the referee “may be listed as an officer, director or trustee” of the organization, and use of the entity’s “regular letterhead” for fund-raising or membership solicitation does not violate the Rules, provided the letterhead lists only the referee’s name and position in the organization (22 NYCRR 100.4[C][3][b][iv]).