Opinion 06-78

June 9, 2006

Digest:         A newly-elected judge may continue as a member of the charitable foundation to which he/she belonged prior to being elected, which foundation bears his/her family name, and whose sole purpose and function is to conduct an annual fund-raising event to benefit local youth. The judge may not actively participate in the solicitation of funds for the foundation, nor may his/her first name be used in any advertising or other promotional literature.

Rule:            22 NYCRR 100.4(C)(3)(b)(i); 100.4(3)(b)(iv); Opinion 01-23 (Vol. XIX).

Opinion:

         Prior to being elected, a judge had established a foundation whose only activity and purpose are to conduct an annual golf tournament to raise money for local youth. The foundation bears the family name of the judge who, prior to the election, used his/her first name in advertising and promotional literature for the event. Since the election, the judge has resigned as chairman and director of the foundation and has been replaced by his/her brother and a law partner. Additionally, the judge’s first name has been removed from all foundation literature and the address of the foundation has been changed from the judge’s home to that of the new chairman. The name of the foundation remains the same.

         The judge inquires as to what, if any, role he/she may maintain in this foundation, and if the foundation may retain the family name in light of the fact that the judge’s brother has assumed the position of director.

         The Rules Governing Judicial Conduct permit a judge to belong to a not-for-profit charitable organization and to assist such an organization in planning fund -raising events. The Rules, however, prohibit any personal participation in the solicitation of funds or other fund-raising activities. 22 NYCRR 100.4 (C)(3)(b)(i), Opinion 01-23 (Vol. XIX). Additionally, a judge may not “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.” 22 NYCRR 100.4(3)(b)(iv).

         While the Rules permit a judge to serve as an officer or director of a not-for-profit organization, this Committee previously held in Opinion 01-23 (Vol. XIX) that a judge should not serve as “chairman” of a foundation where its sole function is to raise funds at a specific event. In effect, remaining as “chairman” and being publicly identified as such would signify impermissible personal participation in fund-raising.

         In the case at hand, the inquiring judge has properly taken affirmative action by removing his/her first name from the advertising literature; resigning as chairman and director of the foundation; and relocating the foundation from his/her home to the address of the new chairman. Under such circumstances, it is the Committee’s view that the judge may permit the foundation to retain the family name in its sponsorship of the fund-raising event.