Opinion 15-60

March 19, 2015

Digest:         Under these circumstances, a judge who has taken appropriate and effective remedial steps to mitigate a school’s use of the judge’s name on invitations to the school’s fund-raiser, and will not accept any award or honor at the event, may attend the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 14-45; 12-61; 11-35; 07-80; 04-133; 03-92; 02-78; 99-99.

Opinion:

         The inquiring judge states he/she initially agreed to be one of multiple honorees at a fund-raiser for a school the judge attended before college. The event is significant for the school, and invitations went out bearing the judge’s name along with other honorees. On realizing the exception in Section 100.4(C)(b)(ii) only applies to law schools, and not other educational institutions, the judge promptly withdrew from the event and from participation as an honoree, and advised the event coordinator orally and in writing to delete the judge’s name from all publications relating to the event, including the relevant website. The judge states that the school has done so, and the judge will not accept any award at the event. The judge now asks if he/she may attend the event.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]). A judge may attend fund-raising events for not-for-profit educational organizations but may not be a speaker or guest of honor at such events unless an exception applies (see 22 NYCRR 100.4[C][3][b][ii]). Specifically, a judge may accept “an unadvertised award ancillary to” such events, and may also be “a speaker or guest of honor at a court employee organization, bar association or law school function” (id.).

         The Committee has previously advised a judge not to accept an award at a college’s fund-raising event, if the award is announced in advance (see Opinions 14-45; 99-99), because a college is not a “court employee organization, bar association or law school” (22 NYCRR 100.4[C][3][b][ii]). As the inquiry notes, the judge already took appropriate remedial steps (see Opinions 12-61; 11-35; 07-80; 04-133; 03-92; 02-78), and the school cooperated.

         On at least two occasions, the Committee considered if a judge may attend an event, after taking such remedial steps. In Opinion 02-78, the inquiring judge was a past president of a not-for-profit community organization that operates a community center. The organization decided to honor its past presidents at an annual fund-raising dinner and included the judge with other past presidents in the list of honorees. The judge objected, both orally and in writing, to the inclusion of the judge’s name in the list of honorees and explained the judicial ethics prohibition. The Committee advised, under those circumstances, the judge could attend the fund-raising event; purchase a journal advertisement; and acknowledge his/her status as a member of the collective group of past presidents being honored (see Opinion 02-78).

         By contrast, in Opinion 11-35, an organization had obtained the judge’s participation as an honoree with assurances the event was not a fund-raiser. When the judge received a copy of the invitation, however, the judge learned the event was a fund-raiser, and the invitation not only listed the judge as an honoree, but “also requested significant additional donations beyond the cost of the event to be made specifically in the honorees’ names, including the judge’s” (Opinion 11-35). Under those circumstances, the Committee concluded that “the judge’s presence at the event would appear to ratify the organization’s conduct,” and advised the judge not to attend the event (id.).

         The Committee believes that here, the judge’s remedial steps, including complete withdrawal as an honoree and removal of the judge’s name from all event communications, have mitigated the effect of the initial invitations bearing the judge’s name. Moreover, unlike Opinion 11-35, the school has not sought to raise additional donations beyond the cost of the event in the judge’s name. Under these circumstances, the judge’s mere attendance at the school’s fund-raiser is unlikely to create any impression that the judge’s name or the prestige of judicial office is being used to raise funds for the school (see 22 NYCRR 100.4[C][3][b][i], [iv]).

         Therefore, the Committee concludes the judge may attend the event.