Opinion 09-52

March 12, 2009

Digest:         A judge who presides in problem-solving courts may encourage participants to participate in alumni association activities and community services projects only if they do not involve fund-raising and may not permit the alumni association or others to announce fund-raising events by placing informational flyers in the courthouse. A judge who presides in problem-solving courts may encourage participants to participate in alumni association activities by granting them “reward credits” redeemable for a procedural benefit or privilege to the participant in court proceedings.

Rules:          22 NYCRR Part 50; Part 100;100.2; 100.2(A); 100.4(C)(3)(b)(i), (iv); Opinions 08-177; Joint Opinion 07-78/07-121; 06-117; 04-119; 02-77 modified on other grounds by 04-88; 00-98 (Vol. XIX); 97-48 (Vol. XV).

Opinion:

         A full-time judge who presides in multiple problem-solving courts advises that an alumni association exists for graduates of the problem-solving courts. According to the judge, the Alumni Association is a registered not-for-profit group that holds weekly support meetings for members and regularly sponsors fund raisers. The Alumni Association usually keeps 50% of the proceeds of a fund raiser to benefit Association members and donates the balance to a charity. The judge also advises that problem-solving court participants must complete a community service project to graduate from the problem-solving court program. The judge asks whether (1) he/she can announce Alumni Association events and/or community service projects in the courtroom, (2) he/she can encourage participants in the problem-solving court program to participate in Alumni Association events, and (3) it is permissible to place flyers for Alumni Association events on a table in the courtroom.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising (see id. at 100.4[C][3][b][iv]).

         In the Committee’s view, the inquiring judge is not prohibited from announcing and promoting events for problem-solving court participants that do not involve fund-raising. However, because a judge is prohibited from personally participating in fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]), he/she should not announce or promote any fund-raising events, or encourage participants to support any fund-raising events (see Opinion 06-117; 97-48 [Vol. XV]). In addition, any fund-raising must be entirely disassociated from the court system and thus may not be conducted on court property, using court resources, or during working hours (Opinions 06-117; 04-119; 97-48 [Vol. XV]). Therefore, flyers for fund-raising events may not be displayed or offered in the courthouse.

         The Committee notes that Problem-Solving Court teams may include treatment providers, coordinators and outside attorneys (see Joint Opinion 07-78/ 07-121) who are not bound by the same prohibitions as a judge and court employees (see generally 22 NYCRR parts 50, 100). Any necessary sponsorship or promotion of fund-raising events could thus be provided through other members of the Problem-Solving Court team, as long as there are no indicia of impermissible judicial participation (Opinion 00-98 [Vol. XIX]).

         The inquiring judge also advises that problem-solving court participants may earn “reward credits” through “phase advancements and compliance with the rules” that a participant may redeem for certain privileges, such as having his/her case called first and being permitted to leave the court session immediately after his/her case is completed. The judge asks whether it is permissible to grant “reward credits” to problem-solving participants to encourage them to participate in Alumni Association events and activities or to permit the Alumni Association to offer “reward credits” as prizes awarded through a random drawing held at an Association meeting.

         The Committee previously has advised that a judge may not provide incentives such as movie passes or coupons from local fast food restaurants to Problem-Solving Court participants, as it could appear that the judge is lending the prestige of judicial office “to advance the private interests of the commercial interests involved” (Opinion 02-77, modified on other grounds by Opinion 04-88). However, the Committee sees no ethical impropriety should the inquiring judge permit an Alumni Association to award “reward credits” that provide a benefit only in the courtroom and that do not serve any commercial interest (cf. Opinion 08-177 [judge may reward successful participants with court-themed gifts of purely nominal value]). The reward credits may be granted for participating in any Association activity, as long as the credits are not designed or distributed in a way that appears to involve the judge in specifically promoting the Association’s fund-raising efforts.

         As the Committee can only address the ethical propriety of the activities the inquiring judge proposes, the Committee also advises the inquiring judge to consult with the office of the Chief of Policy and Planning, New York State Courts, for further guidance concerning permissible activities associated with the operations of problem-solving courts.