Opinion 16-153

October 20, 2016

Digest:         (1) A trial judge whose minor child is participating in a charitable fund-raiser may personally solicit funds from family members and fellow judges not subject to his/her supervision, provided he/she does not use or invoke his/her judicial title or status in doing so. (2) A judge may not personally solicit funds from friends or neighbors. (3) A judge may, in his/her capacity as a parent, accompany his/her minor child as the child solicits funds from friends or neighbors, but may not otherwise assist or participate in the solicitation.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i), (iv); Opinions 15-171; 14-159; 14-132; 13-38; 12-106; 12-96; 12-40; 11-24; 10-152; 09-52; 07-178; 06-114; 96-147; 96-83.

Opinion:

A full-time judge’s minor child is participating in a primary school walk-a-thon to raise money for charity. Students must participate, and are encouraged to “solicit per-lap pledges” from friends, neighbors, and relatives within the second degree of relationship. The judge asks if he/she may participate in the child’s fund-raising efforts by asking family, close friends, neighbors, and judicial colleagues to make pledges on the child’s behalf. If not, the judge asks whether he/she may assist the child in making such solicitations by telephone or in person. The judge would place the telephone calls and/or escort the child to a neighbor’s home. Although the child would make the actual solicitation, the judge asks if he/she may supplement or clarify the child’s explanation, as needed, regarding the nature of the fund-raiser.

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” (22 NYCRR 100.4[C][3][b][i]), or “use or permit the use of the prestige of judicial office for fund-raising” (22 NYCRR 100.4[C][3][b][iv]).

Historically, the Committee “has interpreted section 100.4(C)(3)(b)(i) strictly, to forbid personal solicitation from any person” (Opinion 15-171). However, the Committee has, “with extreme caution,” carved out exceptions to this ban in limited circumstances where “there is a clear and powerful motive for the giver that the public will readily recognize as completely independent of the judge’s judicial status” (id.). Accordingly, the Committee will analyze each category of the inquiring judge’s proposed solicitations separately.

Family. The Committee has recently loosened the ban on personal solicitation of funds from a judge’s relatives. Specifically, the strict prohibition on “‘personally participat[ing] in the solicitation of funds or other fund-raising activities’ (22 NYCRR 100.4[C][3][b][i]) need not apply to a judge’s interactions with his/her own family members” (Opinion 15-171). The Committee reasoned that “[t]he public will readily appreciate that a judge’s interactions with his/her own family members will be motivated by their own familial relationship with the judge, rather than by the judge’s judicial status or the prestige of judicial office” (id.). Furthermore, there is no “risk that soliciting funds for charity from a relative will be construed as an opportunity ‘to curry favor with a judge,’ when that relative’s appearance or interest in a case would in any event require the judge’s disqualification” (Opinion 15-171 [citations omitted]).

Thus, this judge may likewise ask family members to make a pledge on his/her child’s behalf, provided he/she makes no reference to his/her judicial office and does not otherwise lend the prestige of judicial office to his/her solicitations (see 22 NYCRR 100.4[C][3][b][iv]; Opinion 15-171).¹

Other Judges. The Committee has advised that Section 100.4(C)(3)(b) “does not contain any exception” permitting a judge to solicit funds from his/her colleagues, and “[i]t would therefore be inappropriate for a judge to solicit other judges for contributions to charitable causes” (Opinion 96-83). For two decades, the Committee has not seriously reconsidered this view (see Opinions 14-132 [“any person”]; 12-40 [“colleagues”]; 11-24 [“any person” and “colleagues”]; 10-152 [“any individuals”]; 06-114 [“any person”]; 96-147 [“colleagues”]), even in Opinion 12-106, when the Committee carved out an exception on compassionate grounds.

In Opinion 12-106, the Committee advised that a trial judge may “invite other trial judges, who are not subject to his/her supervision, to make voluntary donations to a relief fund set up for a judicial colleague who suffered devastating losses to his/her home and personal possessions” (Opinion 12-106). The Committee reasoned that (1) “there [was] no risk of an appearance of coercion, as the inquiring judge proposes to solicit funds only from other judges over whom he/she has no appellate or supervisory authority”; (2) the proposed solicitation “is not likely to create a public perception that the judiciary itself has singled out a particular educational, religious, charitable, cultural, fraternal or civic organization to benefit from internal solicitation within the court,” as the public will “correctly perceive this as a matter of collegiality or mutual support, i.e., colleagues at a workplace, motivated by kindness and caring, helping each other in a time of distress”; and (3) the recipient judge will not be in the awkward position of being presented with a gift he/she cannot accept under the Rules (id.).

In light of Opinion 15-171 and Opinion 12-106, the Committee believes it is time to reopen the issue, and now concludes the strict prohibition on “personally participat[ing] in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]) also need not apply to a judge’s interactions with judicial colleagues over whom he/she has no supervisory or appellate authority. As in Opinion 12-106, there is thus “no risk of an appearance of coercion” from the solicitation. Moreover, solicitation on behalf of the judge’s child “is not likely to create a public perception that the judiciary itself has singled out” a particular charitable organization “to benefit from internal solicitation within the court” (Opinion 12-106), as the public will correctly perceive this solicitation as one that is personal to the judge and/or the judge’s family.² The public will also readily appreciate that the judge’s interactions with co-equal judicial colleagues will be motivated by ordinary workplace collegiality, rather than by the judge’s judicial status or the prestige of judicial office (cf. Opinions 15-171; 12-106).

Therefore, this trial judge may raise money for charity on his/her child’s behalf by seeking pledges from judicial colleagues over whom he/she has no supervisory authority.

Accordingly, Opinion 96-83 is overruled, and other prior opinions (including Opinions 14-132, 12-106, 12-40, 11-24, 10-152, 06-114, and 96-147) are modified as necessary to make clear that Section 100.4(C)(3)(b)(i) does not apply to a judge’s interactions with judicial colleagues over whom he/she has no appellate or supervisory authority, provided the judge makes no reference to his/her judicial office and does not otherwise lend the prestige of judicial office to his/her solicitations (see 22 NYCRR 100.4[C][3][b][iv]).

Friends and Neighbors. The Committee has recently reaffirmed that “[a] judge’s personal participation in raising funds from friends leaves far more room for error and a much greater risk of an appearance of impropriety” (Opinion 15-171). Accordingly, the strict prohibition on personal solicitation of funds continues to apply, even to “long-time friends” (Opinions 12-40; 11-24).

This judge therefore may not raise money for charity on his/her child’s behalf by seeking pledges from friends or neighbors.

The judge’s remaining questions, then, concern whether the judge may instead accompany and assist his/her minor child when the child knocks on neighbors’ doors or telephones family friends to request pledges. The Committee has said that “a person elected or appointed to judicial office does not forfeit his/her rights or responsibilities as a parent” (Opinions 07-178; accord 13-38). This judge may, in his/her capacity as a parent, supervise the child’s use of the telephone and accompany him/her on visits to neighbors. However, the judge must not otherwise assist or participate in the child’s solicitation of funds from friends and neighbors. Therefore, the judge should allow the child to speak for him/herself on the telephone calls and must not supplement or clarify the child’s own explanations of the fund-raising event.

____________________________

¹ The Committee “has construed the term ‘member of the judge’s family’ to presumptively include relatives within the sixth degree of relationship” (Opinion 15-171 fn 5).

² There is no indication that the judge plans to use court resources, such as email, to make the request (compare Opinion 09-52 [“any fund-raising must be entirely disassociated from the court system and thus may not be conducted … using court resources”] with Opinion 14-159 [“whether a judge may use his/her official court mailing address, telephone number and e-mail address to conduct bar association business is primarily a question of administrative policy”]).