Opinion 17-78

May 4, 2017

Digest:         Under the circumstances, a judge who objected orally and in writing to the appearance of his/her name in a letter soliciting funds for a charity need not take any further action.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i), (iv); Opinions 15-89; 15-19; 14-117; 12-61; 11-35; 04-133; 03-92.

Opinion:

         A judge has learned that an attorney friend referred to the judge’s own prior personal support of a particular charity, before he/she assumed the bench, in a letter soliciting funds for that charity. The attorney did not ask for funds in the judge’s name or on behalf of the judge and did not ask the judge’s permission before mentioning the judge’s name. On learning of the solicitation letter, the judge promptly objected orally and in writing and advised the attorney and the charity not to mention the judge in any future solicitations. The attorney apologized, explained that he/she did not intend any improper use of the judge’s name or title, and agreed to comply with the judge’s request. The judge asks if he/she must take any further action.

         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]). Although a judge may make contributions to charitable organizations from his/her personal funds (see e.g. Opinion 14-117), a judge must not permit such organizations to use the prestige of judicial office to raise funds or solicit members (see 22 NYCRR 100.4[C][3][b][iv]) and must not personally solicit funds nor participate in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]).

         In general, a judge who learns his/her name is being used improperly in connection with charitable fund-raising must object in writing (see e.g. Opinions 12-61; 04-133; 03-92). Depending on the circumstances, including how and why the third party used the judge’s name, the judge may need to take some additional steps, such as requesting a retraction (see e.g. Opinions 12-61; 11-35).

         Here, the attorney did not ask for funds in the judge’s name. Indeed, the judge’s name and judicial title are not the primary focus of the letter; rather, the judge’s historical connection with the charity, before he/she assumed the bench, is mentioned in a single sentence as a historical fact. Thus, the overall context of the letter, together with the attorney’s subsequent contrition and cooperation, supports an inference that the attorney was not deliberately attempting to invoke the prestige of the judge’s current judicial office to raise funds. While it is possible that some recipients of the letter may mistakenly assume the judge authorized the use of his/her name, others may correctly assume that the attorney’s passing reference to the judge was not ill-intentioned, and still others may miss the reference entirely. On balance, the Committee believes that a retraction is unnecessary here and could potentially exacerbate the problem by drawing additional attention to the judge’s historical connection to the charity.

         Under these circumstances, as the judge has already objected orally and in writing and the attorney has agreed not to use the judge’s name in any future solicitations, the judge need take no further action (see e.g. Opinions 15-89; 04-133; 03-92; cf. Opinion 15-19).