Opinion 12-40

March 8, 2012

NOTE: This opinion has been modified in part by Opinions 15-171 and 16-153, which advise that “section 100.4(C)(3)(b)(i) does not apply to a judge’s interactions with his/her family members” (Opinion 15-171) or “to a judge’s interactions with judicial colleagues over whom he/she has no appellate or supervisory authority” (Opinion 16-153), “provided the judge makes no reference to his/her judicial office and does not otherwise lend the prestige of judicial office to his/her solicitations” (Opinions 16-153; 15-171). This exception applies only to personally soliciting funds from a judge’s family members and judicial colleagues; it does not extend to the judge’s friends. 

Digest:         A judge may participate in an athletic event that is organized as a charitable fund-raiser and may donate his/her personal funds to the organization or cause, but the judge must not (a) personally solicit funds from any person, including colleagues, relatives and long-time friends, (b) solicit contributing sponsors, or (c) allow the fact of the judge’s participation or his/her judicial title to be utilized to raise funds for the organization or the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(I), (iv); Opinions 11-24; 10-152; 07-17; 06-114; 96-147 (Vol. XV).

Opinion:

         The inquiring judge plans to participate in a fund-raising walk for a charitable organization and asks whether it is permissible to solicit funds under some circumstances as long as the judge does not use his/her judicial title, official stationery, or work environment in the process. In particular, the judge asks whether he/she may request donations via email from his/her private email account or by means of a letter on personal stationery, without any reference to his/her judicial title, to (1) the judge’s family, friends and acquaintances, (2) lawyer friends with whom the judge socializes, who do not have an active case before the judge, (3) the judge’s judicial colleagues with whom the judge socializes, or (4) other judicial colleagues. The judge further asks whether he/she may “accept donations from co-workers or other persons (of course, excluding litigants), if they become aware of my commitment, even though I will not seek or solicit their donations.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not personally participate in soliciting funds or other charitable fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]) and may not permit the use of the prestige of judicial office for fund-raising solicitation (see 22 NYCRR 100.4[C][3][b][iv]).

         The Committee has consistently advised that, although a judge may participate in an athletic event that is organized as a charitable fund-raiser and may donate his/her personal funds to the organization or cause, the judge must not (a) personally solicit funds from any person, including relatives and long-time friends, (b) solicit contributing sponsors, or (c) allow the fact of the judge’s participation or his/her judicial title to be utilized to raise funds for the organization or the event (see Opinions 10-152; 07-17; 06-114; 96-147 [Vol. XV]; 22 NYCRR 100.4[C][3][b][I]; cf. Opinion 11-24 [acknowledging the rule in a different context]). There is no exception based on the judge’s proposed use of the judge’s private e-mail account or personal stationery, even if the judge does not in any way refer to his/her judicial position or title.

         Nor, in the Committee’s view, may the inquiring judge “accept donations from co-workers or other persons” who may “become aware of [the judge’s] commitment” to raise funds for an organization or cause by participating in the fund-raising walk. Permitting judges to “accept” donations here would be an exception that effectively nullifies the rule; perversely, it could even discourage judges from openly discussing their participation in charitable athletic events for fear of creating the impression that they are engaging in a thinly veiled solicitation of funds.

         The Committee notes that Opinion 11-24 is not to the contrary. Unlike the walk in the present inquiry, the road race described in Opinion 11-24 was not organized as a charitable fund-raising event, as any runner who accomplished a qualifying time in a prior race could participate without making a charitable donation. Further, Opinion 11-24 involved the unique circumstances of an unsolicited gift to the judge of a race admission fee from a close relative who was clearly acting from his/her own independent personal motivations, that is, “out of ‘great sympathy’ for the judge’s strong desire to run in a road race for which the judge simply cannot qualify,” rather than in furtherance of any actual or apparent fund-raising goals of the judge. Moreover, the close relationship of the donor alone would require the judge’s disqualification in any case in which the donor-relative appeared or had an interest.