Opinion 08-52

March 13, 2008

Digest:         A judge who is awaiting Court of Appeals review of an adverse determination by the Commission on Judicial Conduct may not accept contributions toward the expenses of his/her appeal.

Rules:          22 NYCRR 100.1; 100.2(A),(B),(C); 100.4(D)(5); Opinions 03-12; 97-94 (Vol. XVI); 96-33 (Vol. XIV).

Opinion:

         A judge who has been publicly sanctioned by the Commission on Judicial Conduct and whose case has apparently generated wide public comment and support inquires whether his/her supporters may establish a fund to assist with the costs of his/her appeal to the Court of Appeals. The judge’s counsel has advised that the appeal may be extremely expensive due to the number of significant topics and issues to be addressed, many of which may be matters of first impression. The judge proposes that this legal defense fund, if permitted, would have appropriate safeguards to ensure that he/she will not learn the identities of the contributors and that his/her impartiality will not be compromised.

         On three prior occasions the Committee has addressed the question whether a legal defense fund may be established on behalf of a judge in connection with a Commission on Judicial Conduct complaint, investigation, or decision. In the first of these three opinions, the Committee found “unusual circumstances” that permitted establishment of such a fund (see Opinion 96-33 [Vol. XIV]), while in the two more recent opinions, no such “unusual” (Opinions 03-12) or “special or unique” (97-94 [Vol. XVI]) circumstances were present.

         It is the Committee’s view that the circumstances of the inquiring judge are not “unusual”, and, therefore, the views and concerns expressed in Opinion 97-94 (Vol. XVI) and Opinion 03-12 should govern.

         The Committee continues to believe that there are “negative implications and consequences inherent in the establishment of [a legal defense] fund” for a sitting judge (see Opinion 03-12). The mere existence of such a fund could readily be perceived as an invitation for persons in the community to provide the judge with monetary gifts in circumstances other than those expressly permitted under the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[D][5]). Absent unusual circumstances, “the dangers of favoritism and the public perception of favoritism and the necessity to protect the integrity and independence of the judiciary militate against permitting the formation of a legal defense fund as sought by the judge. 22 NYCRR 100.1; 100.2(A), (B), (C)” (Opinion 97-94 [Vol. XVI]; accord Opinion 03-12). We, therefore, advise that the judge should not establish such a fund.