Opinion 09-57

March 12, 2009

Digest:         A judge who serves on the board of a not-for-profit organization may recruit other organization members to participate in a project sponsored by the organization, but may not personally participate in the solicitation of funds or other fund-raising activities.

Rule:            22 NYCRR 100.2; 100.2(A); 100.4( C)(3)(b)(i); 100.4(C)(3)(b)(iv); Opinions 07-118; 98-119 (Vol. XVII).

Opinion: 

         A judge who serves on the board of a not-for-profit organization asks whether he/she may recruit members of the organization to work on a particular project sponsored by the organization.

         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]). A judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization (see 22 NYCRR 100.4[C][3]), but may not personally solicit funds or participate in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) nor use the prestige of judicial office to solicit membership (see 22 NYCRR 100.4[C][3][b][iv]).

         In Opinion 98-119 (Vol. XVII), the Committee advised that a judge may not solicit volunteers to perform physical labor for a not-for-profit charitable and civic organization, to solicit contributions to the organization, or to serve on the organization’s committees or board of directors. In that situation, the Committee concluded that, were a judge to engage in such activities, the public could reasonably believe the judge was using the prestige of judicial office to aid the group’s activities(id.; see also 22 NYCRR 100.4[C][3][b][iv]).

         However, in the present inquiry, rather than soliciting individuals from the general public to work on the organization’s project, the judge would solicit individuals from the organization’s established membership. In the Committee’s view, this limited activity by a judge would not raise the same concern as the proposed activity in Opinion 98-119 (Vol. XVII). Since both the judge and other members of the organization share membership in common, there is no reasonable risk that the judge would be perceived as using the prestige of judicial office for the organization’s benefit (see 22 NYCRR 100.4[C][3][b][iv]). Therefore, the judge may solicit the organization’s members to work on its own sponsored project.

         The inquiring judge does not indicate whether the project involves fund-raising. While a judge may assist a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization in planning fund-raising and may participate in managing and investing the organization’s funds, a judge may not personally participate in soliciting funds or in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). However, the inquiring judge may recruit members from within the organization to solicit contributions (without invoking the judge’s name or title), and may otherwise participate in non-solicitation activities of a fund-raising project (id.; see also Opinion 98-119 [Vol. XVII]). Furthermore, he/she may serve as Honorary Chair of a charitable fund-raiser, provided his/her role is not advertised in advance of, and is only ancillary to the event, and he/she is not the guest of honor and does not personally participates in any fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]; Opinion 07-118).