Opinion 15-219

January 28, 2016

Digest:         Where a judge appears on a not-for-profit organization’s regular letterhead as a board member, the judge may also permit the organization to include his/her name along with other board members on the organization’s fund-raising invitations, as long as the content of the list is the same, even if the formatting is not identical, unless the specific formatting reasonably creates an impression that the board members collectively and/or the judge individually are personally soliciting funds or personally inviting people to attend the fund-raiser.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i), (iv); Opinions 15-89; 14-85; 05-146; 97-12.

Opinion:

         The inquiring judge, who serves on the board of directors for a not-for-profit charitable organization, recently learned the organization listed the directors’ names, including the judge, on the back of its upcoming gala fund-raiser invitation. The ticket price is specified on a separate insert. The organization’s regular letterhead likewise lists all directors, but is formatted differently.¹ The judge asks whether he/she must object to inclusion of his/her name on the invitation.

         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 “shall not personally participate in the solicitation of funds or other fund-raising activities,” although he/she “may assist” in “planning fund-raising” for a not-for-profit educational, religious, charitable, cultural, fraternal, or civic organization (22 NYCRR 100.4[C][3][b][i]). In addition,

(b) A judge as an officer, director, trustee or non-legal advisor, or a member or otherwise: ... (iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation, but may be listed as an officer, director or trustee of such an organization. Use of an organization’s regular letterhead for fund-raising or membership solicitation does not violate this provision, 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 (22 NYCRR 100.4[C][3][b][iv]).

         The Committee has addressed this section several times. As described in Opinion 15-89:

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 pamphlet to solicit 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).

Conversely, where a fund-raising brochure “does not literally reproduce” or “use ‘the same format as’ the organization’s regular letterhead,” the Committee has advised the judge’s name may not be on the brochure (Opinion 14-85). The Committee reasoned that, where the fund-raising brochure “simply list[ed] the names of the board members in alphabetical order directly underneath a solicitation for membership, volunteers, and financial donations ... in a substantially different format from the organization’s regular letterhead,” it would be “reasonable to conclude under the circumstances that the judge is soliciting donations” (see id.).

         To the extent the Committee’s prior opinions have emphasized or focused on whether the directors’ names are formatted identically on the fund-raising materials as on the organization’s regular letterhead, the Committee now believes its emphasis was misplaced. The Committee does not wish to create a trap for the unwary, where trivial format differences may render substantially similar conduct technically unethical. After all, Section 100.4(C)(3)(b)(iv) expressly permits judges to be listed as directors on the organization’s fund-raising communications (as part of the regular letterhead), even though the public could potentially infer that each listed director supports the organization’s fund-raising request. Surely, there is no greater appearance of impropriety in a fund-raising context when all the directors’ names are listed on the invitation, where the list – even if not identically formatted - is still essentially the functional equivalent of the organization’s regular letterhead.

         Accordingly, where a judge appears on a not-for-profit organization’s regular letterhead as a member of the board of directors, the judge may also permit the organization to include his/her name along with all other directors on the organization’s fund-raising invitations, as long as the content of the list is the same, even if the formatting is not identical to the organization’s regular letterhead, unless the specific formatting reasonably creates an impression that the directors collectively and/or the judge individually are personally soliciting funds or personally inviting people to attend the fund-raiser.

         Here, the organization’s regular letterhead lists its directors, including the judge, as permitted by section 100.4(C)(3)(b)(iv). The fund-raising invitation likewise lists all directors, and does so in a manner that cannot reasonably create an impression that the directors are personally soliciting funds or personally inviting people to attend the fund-raiser. Indeed, the list of directors on the invitation is both visually and physically separated from the request for funds, as the solicitation is made on a separate insert. The judge therefore need not object to inclusion of his/her name on the invitation or take any other action on the facts presented.

         Opinions 15-89, 14-85, 05-146, and 97-12 are hereby modified to the extent they suggest the formatting must be “identical” to the organization’s regular letterhead.²

___________________

            ¹ That is, the content is identical, in that it contains all the directors’ names, but the format differs, i.e. the names may be in a different font type, aligned horizontally instead of vertically, arranged in multiple columns instead of a single column, sorted by date of appointment rather than alphabetically, or the like.

            ² The outcome of Opinion 15-89 remains unchanged, because the organization’s regular letterhead did not include the directors’ names. Although 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 14-85).