Opinion 16-02

January 28, 2016

Digest:         A judge may not partner with, or commit the court to partner with, entities applying for a grant to create a domestic violence advocacy program. Nor may the judge or the court participate in the ongoing administration of the resulting advocacy program.

Rules:          22 NYCRR 100.1; 100.2; 100.2(C)); 100.4(C)(3)(b)(i), (iii); Opinions 15-26/15-44; 08-112; 97-71; 88-94.

Opinion:

         A judge, presiding, in cases of domestic violence allegations asks if he/she may permit the court to partner with not-for-profit entities applying for federal grants to represent domestic violence victims in the judge’s court. The proposed Memorandum of Understanding would, among other things, require the judge or court employees to (1) meet quarterly with their legal services and domestic violence advocacy organization “partners” and (2) attend prosecution-oriented training programs.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), and must maintain the judiciary’s independence (see 22 NYCRR 100.1). Also, a judge must not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) but may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]).

         Interpreting section 100.4(C)(3)(b)(iii), the Committee has advised that a judge may write a letter to support a non-profit organization’s or government agency’s request for funding when the organization or agency provides services to the court on a regular basis (see Opinions 08-112; 88-94). Similarly, a judge may write a letter supporting an organization’s application for funding from the New York State Division of Criminal Justice Services to develop a legal advocacy component in the area of domestic violence, if he/she has worked with the organization in his/her court (see Opinions 08-112 [noting certain limitations]; 97-71), and a judge who regularly refers litigants to a residential substance abuse treatment facility may write a letter supporting the facility’s application to become a participating service provider for insurance purposes (see Opinion 14-180).

         Here, however, the judge is asked to do much more than merely supporting a grant application by providing a judicial perspective on the likely benefits to the law, the legal system, and the administration of justice, or sharing his/her judicial experience concerning the applicant. Rather, the court itself would become an active “partner” in both the grant application and the resulting prosecution-oriented advocacy project, if the grant is awarded.

         “Partnering” here, either individually or on behalf of the court, would violate the judge’s obligation to maintain the judiciary’s independence and its appearance of impartiality. It is thus ethically impermissible (see 22 NYCRR 100.1; 100.2; Opinion 15-26/15-44). In the Committee’s view, the judge may not partner with, or commit the court to partner with, entities seeking a grant to create a domestic violence advocacy program. Nor may the judge or court participate in the ongoing administration of the proposed advocacy program as, for example, by committing the judge or court employees to meet quarterly with legal services and domestic violence advocacy organizations and attend prosecution-oriented training programs.

         On these facts, the judge must decline both the proposed Memorandum of Understanding and the proposed partnership.