Opinion 10-132

September 16, 2010

Digest:         A judge may donate a photograph he/she created, to a not-for-profit organization for use as a prize in the organization’s fund-raising auction, but should not permit the organization to identify the judge as the donor or photographer.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(I); 100.5; Opinions ; 08-61; 06-50; 03-45; 01-123 (Vo. XX); 00-70 (Vol. XIX); 99-45 (Vol. XVII).

Opinion:

        A judge whose avocation is photography asks whether he/she may donate a photograph he/she created to a not-for-profit organization for use as a prize in a fund-raising auction.

        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]). Thus, although a judge may assist an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit “in planning fund-raising” (22 NYCRR 100.4[C][3][b][I]), a judge must not “personally participate in the solicitation of funds or other fund-raising activities” (id.) or otherwise lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).

         The Committee previously has advised that a judge may contribute to any permissible charity or not-for-profit organization (see Opinion 06-50), including an organization that is “involved in matters of public controversy, including an involvement in litigation” (Opinion 03-45 [judge may contribute to the New York Civil Liberties Union]).¹ However, “the rules are somewhat more complex” with respect to donating an item for use as a prize in a charity’s auction (Opinion 08-61). The primary concerns are “the improper use of the prestige of judicial office” for fund-raising and an “element of impermissible personal involvement by the judge” in such fund-raising (Opinion 08-61; see also 22 NYCRR 100.2[C]; 100.4[C][3][b][I]).

         Thus, in Opinion 99-45 (Vol. XVII), the Committee advised that a judge may not offer as an auction prize the opportunity to dine with the judge or to sit with the judge at Night Court as the judge would be personally involved in the fund-raising activity. However, in Opinion 01-123 (Vol. XX), the Committee advised that “. . . the activity of a judge in designing, making and donating a holiday ornament, to be auctioned at an organization's fund-raising event, along with ornaments similarly donated by other prominent citizens, does not violate any of the Rules Governing Judicial Conduct.” And in Opinion 00-70 (Vol. XIX), the Committee advised that a judge may contribute a recipe for publication in a recipe book that will be sold for fund-raising purposes and will include contributions from other members of the judiciary, members of the bar and other persons, where the judge’s recipe will not be “singled out in any way” or “used to solicit contributions.”

         Similarly, the inquiring judge may donate a photograph that he/she created to a not-for-profit organization for use as a prize in a fund-raising auction. However, the judge should not permit the organization to identify him/her as the photographer or donor.

__________________________

¹ A judge may not, however, make a contribution to a political organization or candidate (see Opinion 06-50; 22 NYCRR 100.5).