Opinion 05-66

June 9, 2005

Digest:         A judge who is a member of the board of a non-profit cultural organization (1) may not advise the board on legal issues; (2) may give the organization names of potential contributors, but may not permit the use of the judge’s name in a solicitation; (3) may not host a dinner at the judge’s home to thank donors; (4) may not ask persons to join the board, but may suggest to the organization the names of potential board members as long as the judge’s name is not used in any solicitation.

Rules:          22 NYCRR 100.4(C)(3)(b (i), (iv) Opinions 96-69 (Vol. XIV); 96-78 (Vol. XIV); 98-119 (Vol. XVII); 99-08 (Vol. XVII).

Opinion:

         A full-time judge who is a member of the board of directors of a non-profit cultural organization inquires whether the judge (1) may give advice on legal issues, such as giving opinions on provisions of a lease and commenting on proposed contracts with artists or vendors, if the judge does not negotiate with anyone outside the board and is not held out to any third-party as the organization’s counsel; (2) may give to the organization’s executive director names of persons to whom the executive director would send solicitations for funds or invitations to fund-raising events; (3) may host at the judge’s home a thank-you dinner for donors, at which funds would not be solicited; (4) may contact people about joining the board, with the expectation that board members will make an annual contribution, or, in the alternative, may give names of friends or colleagues to the executive director or the chair of the board’s development committee, who would solicit them to join the board.

         Section 100.4(C)(3) of the Rules Governing Judicial Conduct provides that a judge may “may ... serve as an officer, director, or non-legal advisor” of a charitable or cultural organization not conducted for profit (emphasis supplied). 22 NYCRR 100.4(C)(3). Therefore, the judge may not give legal advice to the board on leases, contracts, and the like, even if the judge does not act as the organization’s attorney with outsiders.

         Section 100.4(C)(3)(b)(i) provides that a judge as a director or non-legal advisor “may assist such an organization in planning fund-raising . . . but shall not personally participate in the solicitation of funds or other fund-raising activities.” Since “planning fund-raising” normally includes listing potential contributors or persons to invite to fund-raisers, the judge is permitted to suggest names to the executive director. The judge should insure, however, that the executive director does not use the judge’s name in a solicitation. Use of a judge’s name in a communication designed for fund-raising, other than on an organization’s regular letter head, would violate section 100.4(C)(3)(b)(iv), which provides that a judge “shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.” Opinions 96-78 (Vol. XIV); 99-08 (Vol. XVII).

         The Committee believes that hosting a dinner to thank charitable donors is so intertwined with fund-raising - although not itself a “solicitation of funds” - that the judge should treat that activity as one of the “other fund-raising activities” prohibited by section 100.4(C)(3)(b)(i). See, Opinion 96-69 (Vol. XIV) [a judge who is a trustee of a charitable hospital may not, along with other hospital directors, accept contributions to the hospital, express thanks for contributions, or be photographed by the media accepting and expressing thanks for contributions.]

         Under the circumstances described, a judge’s asking persons to join the board would amount to soliciting an annual contribution from them, which is prohibited, and would also constitute impermissible “membership solicitation” [Section 100.4(C)(3)(b)(iv). See, Opinion 98-119 (Vol. XVII) [a judge’s solicitation of volunteers to provide manual labor to a charitable and civic organization or serve on its board of directors would violate section 100.4(C)(3)(b)(iv)]. The judge may, however, suggest names of potential board members for others in the organization to solicit, as long as the judge insures that there is no use of the judge’s name in connection with the solicitation except on a regular letterhead as permitted by section 100.4(C)(3)(b)(iv).