Opinion 05-79

June 8, 2005

Digest:         Holding a fund-raiser for the purpose of creating and funding a scholarship in the name of a sitting judge is improper.

Rule:            22 NYCRR 100.2(C); Opinions 99-121 (Vol. XVIII); 95-54 (Vol. XIII).

Opinion:

         The inquiring judge informs the Committee that a co-judge is retiring and that a bar association will be sponsoring a retirement dinner prior to expiration of the judge’s term. The inquirer, together with the prospective retiree’s staff, is assisting in the preparation of the event.

         It is the intention of the bar association, through its foundation, to create a scholarship in the name of the retiring judge, “the purpose of which will be to grant an annual scholarship to a deserving law student.” Any money in excess of the cost of the dinner would be donated to the scholarship fund in the judge’s name. Further, the proceeds of a commemorative journal will also be donated to the judge’s scholarship fund. Donations of children’s books “to be used as table centerpieces at the dinner,” and then given to children’s day care centers in the courts, will also be sought. The inquirer seeks the Committee’s opinion as to the propriety of what is proposed.

         In the opinion of the Committee, the solicitation of contributions by way of a fund-raiser for the benefit of a scholarship fund bearing the name of a sitting judge is improper in that it would constitute the lending of the prestige of judicial office (22 NYCRR 100.2(C)) to secure such contributions and thus contravene section 100.2(C) of the Rules Governing Judicial Conduct. Indeed, it is the use of the judge’s name for such purposes which is critical and which distinguishes what is contemplated herein from what has previously been approved by the Committee. In Opinion 95-54 (Vol. XIII), the issue before the Committee was whether it was ethical for a judge to give permission to a charitable organization to establish a scholarship bearing the judge’s name. The organization in question raised money only for its general scholarship fund, and did not designate funds as being raised for any specific scholarship. Only after the funds were raised did the organization assign such funds to an individually named scholarship. Given all the facts presented the Committee stated:

The inquiring judge acknowledges the obligation not to engage in fund-raising. Thus, the question is whether the creation of a scholarship bearing the name of the judge and ultimately the disbursal of funds as an award of a scholarship bearing the judge’s name, constitute the use of the prestige of judicial office for the purpose of soliciting charitable contributions. In view of the Committee, the crucial factor is that the contributions solicited by the organization are on behalf of its general scholarship fund without regard to or designation for any particular scholarship. Only after the funds are raised is an assignment made to an individually named scholarship and presumably that decision is made by the organization, not the contributors. Thus, since contributors are contributing to a general fund, and not to a fund bearing the judge’s name, it does not appear that the prestige of judicial office is being used for the purpose of soliciting such charitable contributions. Accordingly, on the facts presented, the Committee sees no ethical objection in permitting a scholarship to be named after the inquiring judge.

         See also Opinion 99-121 (Vol. XVIII) (It is not unethical for a judge to consent to having a law scholarship and an office named after the judge, where there is no fund-raising or solicitation of contributions).

         Here, the event in question is a fund-raiser for the purpose of securing the funds necessary to create a scholarship bearing the name of a sitting judge. Persons attending the event will have been solicited not merely to pay honor to the career of a distinguished jurist, but to contribute, by way of ticket price and commemorative journal, funds designated to create a scholarship in the name of the judge. It is those facts, done in the name of a sitting judge which, we believe, would constitute an improper use of the prestige of judicial office. 22 NYCRR 100.2(C). The inquiring judge should therefore not engage in the contemplated activity.