Opinion 11-107

September 15, 2011

Digest:         As long as a judge’s presence and role as presenter of an award are unadvertised prior to an event, the judge may introduce and present an award to an honoree at a not-for-profit organization’s fund-raising dinner and may also permit his/her name, title, and biography to be included in materials distributed at the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 11-37; 10-84; 04-141.

Opinion:

         A judge who presides over criminal matters has been invited to attend a fund-raising event for a not-for-profit program which “works with youths awaiting trial.” The judge states that “[j]udges may mandate young defendants to participate in the program as an alternative to incarceration or in addition to a probation sentence.” The evening will include a reception and dinner, fund-raising auctions, and an awards presentation. The judge asks whether he/she may present the program’s annual “Outstanding Youth Award” to an individual who was not only able to avoid incarceration by participating in the program but is now also pursuing higher education and “comment briefly on [the individual’s] accomplishments and [his/her] work with the [p]rogram.” The judge further asks whether he/she may be listed as an award presenter in materials that are handed out at the event, specifically including the judge’s name, title, and biography.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and, thus, may not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]). A judge may not be the speaker or guest of honor at fund-raising events for not-for-profit educational, religious, charitable, cultural, fraternal or civic organizations but may attend and accept an award at such an event, provided that the award is unadvertised and ancillary to the event (see 22 NYCRR 100.4[C][3][b][ii]).

         The Committee has previously advised that a judge may introduce and present an award to an honoree at a not-for-profit organization’s fund-raising dinner, provided that the judge’s presence and role as the presenter of the award are unadvertised (see Opinion 04-141). Accordingly, the judge may do so here as well, where the judge’s role is unadvertised and the judge’s statement will be brief and limited to the honoree’s accomplishments and experience with the program (see id.).

         Although the judge’s role as an awards presenter must be unadvertised prior to the event in order to avoid any appearance that the prestige of judicial office is being used to further the organization’s fund-raising efforts (see generally 22 NYCRR 100.2[C]; 100.4[C][3][b][i]-[ii], [iv]), no such concerns are raised if the judge is listed as an award presenter in materials that are handed out at the event (cf. Opinion 11-37 [judge who accepts previously unannounced award at charitable fund-raiser may be photographed with other award recipients during event and need not object to publication of photograph in local newspaper afterward]). Although a judge must be careful not to lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), a judge also need not hide his/her identity as a judge when engaging in permissible extra-judicial activities (see Opinions 11-37; 10-84). Thus, it is permissible to include the judge’s name, title, and biography in materials distributed at the event.