Opinion 04-140

January 27, 2005

Digest:         On the facts presented, a judge may make a monetary contribution to a non-profit legal services organization that regularly appears in court as counsel or may itself appear as a party; and such contribution need not be disclosed nor must the judge recuse himself/herself provided he/she can impartially preside in the pending matter.

Rules:          22 NYCRR 100.4(A)(1); 100.3(E); Opinions 95-131 (Vol. XIV); 98-40 (Vol. XVI).

Opinion:

         A judge inquires if it is necessary to disclose a monetary contribution made to a non-profit legal services organization which litigates in court as counsel and may appear as a party in an action; and whether it matters that the organization appears regularly before the judge. Further, if it is necessary to disclose the contribution, must the judge who believes he/she can be fair, recuse himself/herself from the matter and, if so, for how long? Additionally, if disclosure and/or recusal is required should there be a de minimus rule as to the amount of the contribution and, if so how is that to be determined?

         In prior opinions the Committee has held that, as a general rule, it is of no ethical consequence for a judge to make a monetary contribution to a non-profit organization such as the Legal Aid Society, even if the organization appears in the judge’s court. We have previously stated that “There is no appearance of impropriety in making such a contribution to the Legal Aid Society which is a private not-for-profit corporation. The mere making of such a charitable contribution does not in any way ‘cast reasonable doubt on the judge’s capacity to act impartially as a judge.’” 95-131 (Vol. XIV). Such contribution is ethically permissible even though attorneys from the organization may represent litigants before the judge. In a subsequent opinion, the Committee found it was permissible to contribute to a Police Benevolent Association even if police officers, represented by the Association regularly appear in the judge’s court as witnesses or representatives of the People in a prosecutorial capacity. 98-40 (Vol. XVI).

         Since a contribution to an organization which litigates in court as counsel or potentially appears as a party to an action, would not automatically cast doubt on the judge’s capacity to impartially fulfill his/her judicial duties, such an act does not necessarily violate section 100.4(A)(1) of the Rules Governing Judicial Conduct. The provisions of this section regulate the extra-judicial activities of a judge to ensure there is no conflict with a judge’s judicial obligations. Section100.4 of the Rules provide in pertinent part that extra judicial activities shall be conducted so that they do not “(1) cast doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office.” 22 NYCRR 100.4.

         The Committee has not had before it the question of whether there should be a “de minimus” rule establishing a bright line amount for monetary contributions beyond which disclosure and/or recusal would be required. In the absence of such a rule, principles of common sense should prevail. Although the Committee has held that a judge’s capacity to act impartially is not impaired by the mere making of a monetary contribution to a non-profit organization, a particularly large contribution that is essential to sustain the operations of the particular agency is more likely to create a reasonable doubt as to the judge’s ability to act impartially. If a judge were to make such a large contribution it may create the appearance that he/she has a special interest in the functioning of the organization. This interest might cast a reasonable doubt as to the ability to fulfill one’s judicial duties, thus requiring disclosure. In contrast, where a judge’s contribution is relatively modest and not essential to the operation of an organization, there would be no need for disclosure, provided the judge believes that he or she can fairly and impartially fulfill all judicial duties.

         Finally, we stress that this opinion is not intended to provide a general rule for contributions to any and all not-for-profit organizations, but, instead, is limited to the particular facts before us i.e., a contribution to a legal services organization.