Opinion 13-122

September 12, 2013

Digest:         The judges’ division of a specialized bar association that is dedicated to fighting a serious illness may approve a grant to a not-for-profit charitable organization which does not engage in lobbying, even if some of the money may be used to help train individuals to lobby for increased funding and improved health care.

Rules:          22 NYCRR 100.4(C)(3); 100.4(C)(3)(b)(I); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 12-52; 11-32; 10-147; 08-193; 08-73; 04-140; 03-45; 01-84; 98-101 (Vol. XVII); 98-50 (Vol. XVI); 98-40 (Vol. XVI); 97-134 (Vol. XVI).

Opinion:

         The inquiring judge is an officer of the judges’ division of a specialized not-for-profit bar association which is dedicated to fighting a serious illness. The judge states that the association regularly awards grants to other organizations whose programs are consistent with the association’s mission to promote awareness and prevention of the illness and to facilitate training of attorneys to provide pro bono legal assistance to patients who have been diagnosed with the illness. The judge states that the association has received a grant proposal from a not-for-profit organization (the applicant). The applicant and its parent organization are both dedicated to fighting the same illness, but the judge states that the parent organization “does not qualify for” the same not-for-profit status as the applicant, “due to [the parent organization’s] lobbying activities.” The judge states that the applicant supports “the educational efforts of” the applicant’s parent organization by (1) “empower[ing] and train[ing] advocates to be effective in every aspect of the fight to end” the illness, (2) giving actual and potential victims of the illness “the tools to make their own informed decisions and take a leadership role with legislative, scientific and clinical decision makers,” and (3) helping “guide the public through the maze of information on” the illness. Under these circumstances, the judge asks whether it is ethically permissible for the association’s judicial board to award a grant to the applicant, given that the applicant is “a non-profit organization that [in turn] funds the training and education of advocates who lobby federal and state legislatures.” In the alternative, the judge asks whether the lawyers’ division of the association may award a grant to the applicant.

         A judge may be a member, officer or director of an organization devoted to the improvement of the law, the legal system or the administration of justice or of an educational, charitable or civic organization not conducted for profit (see 22 NYCRR 100.4[C][3]), including a specialized bar association (see Opinion 98-50 [Vol. XVI]) and may also participate in the management of the organization’s funds (see 22 NYCRR 100.4[C][3][b][I]). However, a judge must not directly or indirectly engage in any political activity, except as otherwise authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]).

         The Committee has previously advised that a judge or judicial association may make a charitable contribution, provided that the judge does not solicit funds (see e.g. Opinions 04-140 [contribution to a legal services organization]; 98-40 [Vol. XVI] [contribution to a police benevolent association]; see also Opinion 12-52 [applying the same standards to a judges’ association]). Indeed, the Committee has advised that a judge may make a financial contribution to the New York Civil Liberties Union (see Opinion 03-45), even though the organization is engaged in a variety of activities, only some of which are permissible for judges personally (see Opinion 98-101 [Vol. XVII] [noting that a judge’s membership in the NYCLU must not “involve the judge in litigated matters or publicly associate[] the judge with organizational positions on matters of public controversy”]).

         Moreover, the Committee has also advised that a judge may participate in awarding scholarships, provided that the judge will not be involved in any fund-raising (see Opinions 11-32; 08-193; 01-84) and that a newly elected judge may continue to serve as an officer of a not-for-profit charitable organization which seeks to revitalize distressed communities and prepare youth for a productive future, where the judge will continue to “review and approve funding proposals” (see Opinion 97-134 [Vol. XVI]).

         Thus, the Committee can see no reason to prohibit the judges’ division of a bar association from making the proposed grant described in the present inquiry, unless such action would constitute impermissible direct or indirect political activity by the judges.¹

         In considering this question, the Committee emphasizes that there is no indication in the inquiry that any member of the bar association would personally participate in lobbying or other political activities or provide ongoing supervision or direction to the applicant on use of the awarded funds. The applicant (prospective grant recipient), in turn, is a not-for-profit organization which does not itself engage in lobbying and has a separate legal identity from its parent. Nor does it appear from the inquiry that the applicant’s educational activities are devoted primarily or exclusively to training lobbyists. To the contrary, among other educational goals, the applicant seeks to educate the public about many different aspects of the illness, including information to help empower patients “to make their own informed decisions” about their treatment.

         Thus, the Committee concludes that awarding the grant to the applicant under the circumstances presented does not constitute direct or indirect political activity. It is, therefore, permissible for the judges’ division of a bar association to approve the grant, even if some of the money may be used to help train individuals to lobby for increased funding and improved health care.

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     ¹ The Rules Governing Judicial Conduct do permit certain limited political activity in support of measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]; Opinions 10-147 [describing prior opinions]; 08-73 [advising that a judge may not form a Political Action Committee to promote legislative initiatives that affect the courts and the judiciary, but discussing certain permissible alternatives]). However, by its terms, this exception does not authorize judges to engage in political activity in support of primarily medical or health aims.