Opinion 15-104

June 11, 2015

Digest:         A judge may permit a not-for-profit educational organization to use his/her name and honorific when listing the judge as a volunteer in documents that are circulated within the organization, where other volunteers are also listed with their titles, and the documents will not be used for fund-raising.

Rules:          22 NYCRR 100.2; 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); Opinions 13-178; 13-132; 12-135; 11-37; 06-105; 05-56.

Opinion:

         A judge who is volunteering for a not-for-profit educational organization asks whether he/she may permit the organization to list the judge “as a volunteer by name and honorific” on internal documents, assuming that other volunteers will similarly be listed with their titles. The organization has advised the judge that volunteers’ names would not appear on the organization’s external brochures, and the organization is not planning to produce any fund-raising documents. The judge will not be engaged in any fund-raising.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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 must conduct his/her extra-judicial activities so that they are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge must not personally participate in the solicitation of funds (22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising or membership solicitation (22 NYCRR 100.4[C][3][b][iv]). Nonetheless a judge “may be listed as an officer, director or trustee” of a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization (22 NYCRR 100.4[C][3][b][iv]). Use of the organization’s regular letterhead for fund-raising or membership solicitation does not violate this restriction, “provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge’s judicial designation” (id.).

         Generally, a judge need not conceal his/her judicial status when engaging in permissible extra-judicial activities (see Opinion 06-105; see also Opinion 11-37 [although a judge may not be named beforehand in the promotional material for a charitable fund-raising event, the judge need not thereafter conceal the fact that he/she accepted an award at the event]).¹ Thus, in Opinion 12-135, the Committee advised that a judge who was participating in a religious institution’s mission trip to visit children in a foreign country may also fully participate in an informational booklet that would be distributed to the children’s parents. “As it appears that the information booklet will not be used to solicit funds for the trip but will, instead, be used to provide information to participating parents in the host country, the judge may permit use of his/her judicial title” (id.).

         By contrast, in Opinion 05-56, the Committee advised that a judge may not allow a not-for-profit organization to quote him/her in its informational brochure and identify him/her by name and title, where it was “intended to serve a promotional function.” Critically, there was no indication in the inquiry that the judge had any formal role in the organization, such as an officer, director, trustee or volunteer. Thus, under the circumstances, there was no apparent reason to include the judge’s statement about the organization other than to lend the prestige of judicial office to promote the organization (see 22 NYCRR 100.2[C]).

         The Committee believes this judge need not hide his/her judicial status when assisting a not-for-profit educational organization. He/she may permit the entity to use his/her name and honorific when listing him/her as a volunteer in documents circulated within the organization, assuming other volunteers are also listed with their titles, if such documents will not be used for fund-raising.

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         ¹ Of course, a judge must not make an unnecessary, voluntary disclosure of his/her judicial status in circumstances where doing so would create an appearance of impropriety (see e.g. Opinions 13-178 [when publicly expressing his/her views on issues that affect him/her personally and directly, in his/her capacity “as a private citizen whose personal interests will be affected”]; 13-132 [in connection with a relative’s pending litigation]).