Opinion 14-85
June 12, 2014
Note: This opinion has been modified to the extent it suggests “the formatting must be ‘identical’ to the organization’s regular letterhead” in order for section 100.4(C)(3)(b)(iv) to apply (Opinion 15-219). As noted in Opinion 15-219, “[a]lthough the reasoning of Opinion 14-85 is no longer applicable, the Committee notes that placing the directors’ names on a fund-raising brochure ‘directly underneath a solicitation for membership, volunteers, and financial donations’ could still be prohibited if ‘it is reasonable to conclude under the circumstances that the judge is soliciting donations’” (Opinion 15-219 n.1).
Digest: (1) A judge may not provide a testimonial for the judge’s former campaign manager to use in advertisements, but may permit the former campaign manager to provide the judge’s name as a reference to prospective clients, subject to certain limitations. (2) A judge who serves as a director of a not-for-profit organization may not allow the judge’s name to be listed with the names of other directors on the organization’s fund-raising brochure. The judge may, however, allow the organization to acknowledge the judge’s donation on the brochure by listing the judge’s name along with the names of other similarly situated donors.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I), (iv); 100.5; Opinions 14-45; 13-18; 12-52; 12-26; 11-136; 11-37; 10-07; 05-146; 05-126; 05-56; 04-140; 02-106; 02-78; 01-46 (Vol. XX); 97-133 (Vol. XVI); 97-12 (Vol. XV); 96-46 (Vol. XIV); 95-153 (Vol. XIII); 90-168 (Vol. VI); 88-27 (Vol. I); 88-10 (Vol. I); Joint Opinion 92-70/92-84 (Vol. X).
Opinion:
The inquiring full-time judge asks two questions concerning his/her extra-judicial activities. First, the judge asks if he/she may provide a written testimonial for a campaign manager who worked on the judge’s campaign, for use on the campaign manager’s professional website. It appears that, over the course of the campaign, the judge developed a high opinion of the campaign manager’s communications skills and ability to organize and motivate volunteers, and the judge is willing to share this view with others.
Second, the judge states that he/she is an officer or director of a not-for-profit charitable organization which promotes athletic involvement by raising funds for athletic programs at local schools.1 The judge has provided a copy of the organization’s brochure for the Committee’s review and has asked if he/she may be listed on the brochure as a director and as a donor to the organization, with the designation “Hon.” The Committee notes that the brochure’s primary purpose is fund-raising, although it also solicits volunteers and new members. Indeed, the list of directors’ names appears on a page containing such solicitations. By contrast, the list of donors’ names is not directly linked to any solicitations, but instead acknowledges previously made donations. The donors’ names are grouped into different tiers based on the amount of the donation.
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 must ensure that his/her extra-judicial activities are not incompatible with judicial office, and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). 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]). A judge may serve as an officer or director of a charitable or civic organization not conducted for profit, subject to certain limitations (see 22 NYCRR 100.4[C][3][a][I]-[ii]), and the judge’s name and office in the organization may be listed on the organization’s regular letterhead, along with the judge’s judicial designation if comparable designations are listed for other persons, even if this regular letterhead is used for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]). However, a judge must not otherwise use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]), and must not personally participate in the solicitation of funds or other fund-raising activities, although he/she “may assist” a not-for-profit charitable or civic organization in “planning fund-raising” (see 22 NYCRR 100.4[C][3][b][I]).
1. Providing a “Testimonial” for the Judge’s Former Campaign Manager
The Committee has previously advised that a judge may not allow an agency that ran the judge’s media campaign to use complimentary quotes from the judge’s thank you letter to the agency, even if the judge will be identified only as an anonymous “judicial candidate” (Opinion 01-46 [Vol. XX]); may not provide a letter of reference to a friend which is intended to be used in the promotion of the friend’s real estate business (see Opinion 05-126); may not provide an endorsement of a book that would appear on the book’s back cover and identify him/her as an anonymous “New York State Judge” (Opinion 12-26 [discussing prior opinions]); and may not, after reviewing a criminal practice treatise, prepare a “testimonial which would be included in a brochure used for marketing purposes” (Opinion 97-133 [Vol. XVI]). In each instance, the Committee concluded that the judge’s proposed involvement would impermissibly lend the prestige of judicial office to advance the private interests of another (see 22 NYCRR 100.2[C]).
Here, too, the Committee concludes it would similarly be improper for the inquiring judge to provide a written testimonial or other statements for the judge’s former campaign manager to use in advertising or promoting the campaign manager’s professional services (see Opinion 01-46 [Vol. XX]; 22 NYCRR 100.2[C]).
Nonetheless, the Committee has previously advised that a judge may, subject to certain limitations, provide an employment reference for an individual who has worked directly for a judge (see, e.g., Opinion 95-153 [Vol. XIII] [judge’s court attorney]). Indeed, the Committee has recognized that “[t]o hold otherwise would prevent, for example, a lawyer, or even a housekeeper, who has worked directly for a judge, from obtaining the judge’s recommendation when seeking other employment” (Opinion 88-10 [Vol. I]). Under the specific circumstances presented here, the Committee believes that there would be no appearance of impropriety in the judge authorizing his/her former campaign manager to provide the judge’s name as a reference in the course of discussions with specific prospective customers, although not in written advertisements or other promotional materials (cf. Opinion 05-126).
If the campaign manager’s prospective customers contact the judge to ask about the judge’s experience with the campaign manager, the judge may respond in accordance with all appropriate limitations on judicial speech and conduct. The judge may state facts concerning his/her own personal experience with the campaign manager, including the judge’s personal knowledge of the campaign manager’s abilities and the judge’s level of satisfaction with the professional services rendered (see generally Opinions 10-07; 95-153 [Vol. XIII]), but should not make a recommendation about hiring the campaign manager (see Opinion 10-07 [“a judge who provides a reference for a job, law school, or college applicant, or an applicant for an appointive position, should not recommend that the recipient hire, accept or appoint the applicant”]). The judge must also be careful to avoid any perception of impermissible political activity, and therefore must not provide campaign advice (see generally 22 NYCRR 100.5).
2. Appearing on a Not-for-Profit Organization’s Fund-Raising Brochure
With respect to the inclusion of the judge’s name as a director on the organization’s fund-raising brochure, the primary question presented is whether the proposed brochure falls within the exception permitting the judge’s name to appear on an organization’s “regular letterhead” even when the letterhead is being used to raise funds (see 22 NYCRR 100.4[C][3][b][iv]).
The Committee has previously advised that it would be improper for a judge to allow his/her name to be listed on the letterhead of a bar association committee formed specifically for the purpose of soliciting contributions for a memorial scholarship fund (see Opinion 96-78 [Vol. XIV]), or on an invitation from a bar association ad hoc committee formed to invite people to participate in a fund-raising event (see Opinion 99-08 [Vol. XVII]). In both cases, it appears that a special letterhead (reflecting only the participants in the fund-raising group) would be created and used for fund-raising purposes, rather than the organization’s “regular letterhead.” Accordingly, the exception set forth in Section 100.4(C)(3)(b)(iv) did not apply.
Conversely, the Committee has advised that a judge’s name may be listed on a not-for-profit charitable organization’s regular letterhead as an officer, and “such letterhead” may be used in a printed pamphlet soliciting donations (see Opinion 05-146). The Committee has also advised that a judge’s name may be listed as an officer on the invitation to a public library’s fund-raising gala “if the listing of the judge and other board members is in the same format as on the organization’s regular letterhead” (Opinion 97-12 [Vol. XV]).
Here, however, the fund-raising brochure does not literally reproduce the organization’s regular letterhead on the brochure. Nor does the brochure use “the same format as” the organization’s regular letterhead. Instead, the brochure simply lists the names of the board members in alphabetical order directly underneath a solicitation for membership, volunteers, and financial donations. In effect, under the facts presented, the listing of the names on this particular fund-raising brochure is in a substantially different format from the organization’s regular letterhead. The judge’s name therefore may not be included in this list of directors on the fund-raising brochure, because it is reasonable to conclude under the circumstances that the judge is soliciting donations (see generally 22 NYCRR 100.4[C][3][b][iv]; Opinions 97-12 [Vol. XV]; 96-78 [Vol. XIV]).2
The Committee reaches a different result, however, with respect to the listing of the judge’s name as one of many similarly situated donors on the organization’s fund-raising brochure. The Committee previously has advised that a judge is not prohibited from making a charitable donation (see Opinion 04-140) and may thereafter permit the donee to acknowledge the judge’s donation by displaying a sign bearing the judge’s name and judicial title during the charity’s fund-raising golf outing (see Opinion 13-18). Similarly, the Committee has advised that a judge who has made a donation to a charitable organization “may include his/her name and title on a list of patrons who have” made such contributions (Opinion 90-168 [Vol. VI]); a judge who has made a donation to a parochial school may permit his/her name to be included along with those of other contributors on a “page of honor” within the school’s appointment calendar (Opinion 88-27 [Vol. I]); and a judge’s association that has made a charitable donation to a private school’s athletic program may permit the school to display the association’s logo at the school’s playing fields where, under the circumstances presented, the display is meant to recognize the association’s recent support of the school’s athletic program, rather than for fund-raising purposes (see Opinion 12-52). Finally, the Committee has advised that a judge may make a charitable donation by paying to place a message in a not-for-profit organization’s fund-raising journal, even though such messages necessarily reveal the fact that the judge has made such a donation (see Opinions 02-78 [purchasing a “gold page ad” in the organization’s fund-raising journal does not constitute solicitation of funds by the judge]; 96-46 [Vol. XIV]; 94-25 [Vol. XII]; Joint Opinion 92-70/92-84 [Vol. X]).
Here, too, the Committee concludes that no appearance of impropriety results from mere inclusion of the judge’s name on the page of the organization’s fund-raising brochure which acknowledges the past generosity of donors. In other words, the presence of the judge’s name on the list of donors, in a comparable and un-extraordinary manner, does not create the appearance that the judge’s name is being improperly used to solicit funds (see 22 NYCRR 100.4[C][3][b][iv]). The judge may therefore permit the organization to acknowledge the judge’s donation on the brochure by listing the judge’s name along with the names of other similarly situated donors (see Opinions 13-18; 90-168 [Vol. VI]; 88-27 [Vol. I]). The judge may also permit the organization to include his/her judicial title if the titles of other donors, if any, also are listed (see Opinions 13-18; 96-46 [Vol. XIV]; 90-168 [Vol. VI]).
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1The judge states that this “booster club” is a 501(c)(3) organization.
2This result is not inconsistent with Opinion 11-136, where “the clear intention” of a web page listing of all board members was “to inform the public of the identity of the board members, rather than to raise funds” (id.). There was thus no need to consider whether the directors’ names were listed in the same format as the organization’s regular letterhead under Section 100.4(C)(3)(b)(iv).