Opinion 14-112

September 4, 2014

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A judge may participate in a culturally mandated celebration and burial ceremony in honor of the judge’s deceased parent, which will take place in another country. During one portion of the ceremony family, friends and other well-wishers shower the judge and his/her siblings with local currency.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.4(C)(3)(b)(I); 100.4(D)(5)(d); 100.4(D)(5)(h); 100.4(H)(2); 100.5(A)(5); Opinion 95-161(Vol. XIV).

Opinion:

         A judge asks if he/she may participate in a culturally mandated celebration and burial ceremony in honor of the judge’s deceased parent, which will take place in another country. During the ceremony, the decedent’s children are required to dance while family, friends and other well-wishers “shower” the children with local currency. The parent was a cultural leader in his/her community outside the United States.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2),and must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[BA]). A judge may accept a gift from a relative or friend for a special occasion such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship (see 22 NYCRR 100.4[D][5][d]), and any other gift if the donor is not a party or other person who has come or is likely to come, or whose interests have come or are likely to come before the judge (see 22 NYCRR 100.4[D][5][h]). In the latter case, if the value of the gift exceeds $150, the judge must file a report indicating the date, place and nature of the gift as a public document in the office of the clerk of the judge’s court (see 22 NYCRR 100.4[D][5][h]; 100.4[H][2]).

         The inquiring judge will not violate any rule governing judicial conduct by participating in the burial ceremony for his/her parent. As the judge describes it, the gift of money from friends, family and other well-wishers is a cultural tradition in the country where the ceremony will occur. The inquirer’s judicial status is irrelevant to the tradition and to the participants. Rather, the money is a permissible gift to the judge and his/her siblings for a special occasion recognizing the family’s loss. The gift does not pose any risk to the integrity of the judiciary (see 22 NYCRR 100.2[A]) or to the judge’s impartiality (see 22 NYCRR 100.3[E][1]), and causes no appearance of impropriety (see 22 NYCRR 100.2).

         Based on the circumstances the judge describes, the Committee concludes the judge is not soliciting funds, and cannot reasonably be perceived as soliciting funds, by participating in that portion of the ceremony involving the monetary gift (cf. Opinion 95-161[Vol. XIV][looking to the “stated intent of the organization” as well as the surrounding circumstances in determining “whether the activity is or is not a fund-raiser”]). (see 22 NYCRR 100.4[C][3][b][I]; 100.5[A][5]).

         Therefore, the judge may participate in the foreign cultural ceremony, including dancing while family, friends and other well-wishers shower the judge and his/her siblings with currency.

         The Committee declines to answer that portion of the inquirer’s inquiry as to whether he/she could participate in such a ceremony if it were held in the United States, as the Committee does not answer hypothetical or speculative questions.