Opinion 15-89

April 23, 2015

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, “[t]he outcome of Opinion 15-89 remains unchanged, because the organization’s regular letterhead did not include the directors’ names” (Opinion 15-219 n.1).

Digest:         Where a not-for-profit organization’s regular letterhead does not include the names of the organization’s directors, a judge who learns that all the directors were listed on an invitation to the organization’s upcoming fund-raiser must advise the organization in writing not to list the judge’s name on invitations to fund-raising events. Absent any additional circumstances rendering the judge’s appearance at the event improper, the judge may thereafter attend the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); Opinions 15-60; 14-85; 12-61; 05-146; 97-12.

Opinion:

         The inquiring full-time judge is a director of a not-for-profit charitable organization. The judge recently received an invitation to the organization’s upcoming fund-raiser. Although the invitation prominently and repeatedly displays the entity’s name, it also lists the judge’s name, in small print, on the back of the invitation as a board member.¹ The judge states the organization’s regular letterhead does not display the directors’ names. The judge asks for guidance on his/her ethics obligations.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), 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 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]). 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 letterhead is used to solicit funds or new members. (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 to raise funds or solicit membership (see 22 NYCRR 100.4[C][3][b][iv]), and must not personally solicit funds nor participate in other fund-raising activities, although he/she “may assist” in “planning fund-raising” (see 22 NYCRR 100.4[C][3][b][i]).

         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 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.).

         Here, too, because the organization’s regular letterhead does not include the names of its directors, the “regular letterhead” exception does not apply. The judge therefore must take appropriate steps to remedy the organization’s use of the judge’s name on its fund-raising invitations (see e.g. Opinions 15-60; 12-61). As it appears the organization’s error was inadvertent and the judge’s name appeared only once, in small print on the back of the invitation (along with all other directors of the organization), the Committee believes it will be sufficient for the judge to advise the organization in writing not to list the judge’s name on any future invitations to fund-raising events.

         Once the judge has done so, the Committee believes that the judge’s mere attendance at the 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 organization (Opinion 15-60). Therefore, after making his/her written objection as noted above, the judge may attend the event.

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       ¹ All directors are listed under the organization’s name, with courtesy titles such as “Hon.” or “Dr.” as appropriate.