Opinion 06-67

June 9, 2006

Digest:         (1) A judges’ association may not use a “friends committee” to solicit wine or other goods for its members in connection with an association meeting, or to solicit money to buy door prizes or other items for the members. (2) Although a famous entertainer may perform at the association’s meeting for free or for a substantially reduced fee, the president of the association may not write to the entertainer, a person not known to the president, asking the entertainer to perform at the dinner without a fee or for a substantially reduced fee.

Rules:          22 NYCRR 100.2(C); 100.4(A)(2); 100.4(C)(3)(b)(i), (iv). Opinions 06-50; 00-98 (Vol. XIX); 99-09 (Vol. XVII); 98-119 (Vol. XVII); 94-58 (Vol. XII); 94-07 (Vol. XII); 93-78 (Vol. XI).

Opinion:

         The president of an association of judges inquires whether the association may form a “friends committee” to solicit “gifts of monies or kind” in connection with a meeting. The gifts in kind would include wine and other such things for the event, and the monies would be used to defray the cost of door prizes or other items for the judges. The inquirer also asks whether the “active” members of the friends committee could include retired judges and lawyers who “occasionally” appear in court before members of the judges’ association, and if that were not permissible, lawyers who do not appear before any judges in the association, such as corporate lawyers who do not go to court.

         The inquirer also asks whether a famous actor-singer may perform at the association’s meeting for free or for a substantially reduced fee, and further, whether the inquirer may, as president of the association, write to the entertainer to ask him to perform at the meeting for free or for a substantially reduced fee. Since the inquirer does not know the performer, the inquirer also asks whether the letter could include a “cc.” to a person whom the performer knows, with that person’s permission.

         A judge is required to avoid impropriety and the appearance of impropriety in all of the judge’s activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2. A judge shall conduct all of the judge’s extra-judicial activities so that they do not detract from the dignity of judicial office. 22 NYCRR 100.4(A)(2). A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others (22 NYCRR 100.2(C)), and may not personally participate in the solicitation of funds or other fund-raising of an organization, or use or permit the use of the prestige of judicial office for fund-raising. 22 NYCRR 100.4(C)(3)(b)(i), (iv). Fund-raising includes solicitation of goods. Opinion 94-58 (Vol. XII) (clothing drive).

         On the basis of these Rules, the Advisory Committee has stated that a judge may not seek funding from law firms or other commercial entities of educational programs for a judicial convention, as that solicitation “falls within the category of fund-raising.” Opinion 99-09 (Vol. XVII). The prohibition against a judge soliciting contributions for a meeting applies equally to a solicitation by a judges’ association. Opinion 94-07 (Vol. XII) (a county magistrate’s association may not hold a dinner-dance on behalf of the association that will involve the sale of tickets and solicitation of the public, as this would be a fund-raising event, because the excess money collected would be used for dinner meetings, training and education of judges, and other activities); See also, Opinions 06-50; 93-78 (Vol. XI).

         Clearly, neither the inquiring judges’ association nor its president may solicit contributions of gifts for its members. Recognizing this prohibition, the association asks whether they may use a “friends committee” of lawyers and retired judges to solicit contributions.

         In Opinion 00-98 (Vol. XIX), this Committee stated that a friends committee consisting entirely of non-judges may solicit commercial sponsorship of educational programs to be presented at a judicial convention. The Committee also stated that parts of a convention journal that “create the impression that the judges are lending the prestige of judicial office to advance the private interests of the various contributors . . . or which ‘detract from the dignity of judicial office’ . . . should be avoided.” Id., quoting 22 NYCRR 100.4(A)(2). We adhere to the finding as to the friends committee in that opinion, but we do not extend it to the present inquiry.

         In regard to the dignity of judicial office and the appearance of impropriety, there is a substantive difference between soliciting funds to enhance judicial education and soliciting gifts of wine or money to enhance a judges’ dinner or buy door prizes for judges. Moreover, if a judges’ association asked lawyers to serve on a committee to solicit gifts for the private enjoyment of the association’s members, that would impermissibly risk the appearance that in recruiting the lawyers the association was using the prestige of judicial office to advance the private interest of the association and its members.

         Further, while there is no per se ethical rule barring an entertainer from performing at a judges’ association meeting for free or for a substantially reduced fee, provided the performance is consistent with the dignity of the judiciary, see 22 NYCRR 100.4(A)(2), the president of the judge’s association, who does not know the entertainer, may not ask the entertainer to eliminate or reduce the fee. On the facts presented, that would amount to soliciting a contribution or gift of professional services or talent, and would risk the appearance that the president is using the prestige of judicial office to advance the private interests of the association. See Opinion 98-119 (Vol. XVII) (A judge should not, on behalf of a not-for-profit organization, solicit volunteers to perform physical labor for the organization (repairing homes), as that “could . . . lead to a public perception that the prestige of judicial office is being used to support the endeavors of this particular group.”)