Opinion 17-80

June 15, 2017

Please Note: While it does not affect the outcome here, see AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A judicial association may accept an appropriate donation of food from a local restaurant for an upcoming cultural celebration open to the public.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.4(C)(3)(b)(i); 100.4(D)(5); 100.4(D)(5)(a)-(h); 100.4(H); 100.4(H)(2); Opinions 17-24; 15-122; 14-138; 14-40/14-43; 12-86; 06-50; 01-29; 00-98; 93-78.

Opinion:

         A full-time judge asks if his/her judicial association may accept a modest in-kind donation of “finger food” from a local restaurant for an event celebrating a particular cultural heritage.¹ It is free, open to the public, and features a keynote speech from a member of the legal community, and will be held at a courthouse.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), 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 must not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) or accept any gift, bequest, favor or loan except as permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[D][5]). Where a proposed gift does not fall into one of the specifically enumerated permissible categories (see 22 NYCRR 100.4[D][5][a]-[g]), the judge may accept it “only if” the catch-all exception applies (see 22 NYCRR 100.4[D][5][h]):

the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $150.00, the judge reports it in the same manner as the judge reports compensation in Section 100.4(H).

         Generally, the Committee advises that a judges’ association “is held to the same standards as an individual judge” (Opinion 06-50), including the ban on personally soliciting charitable donations (see Opinion 93-78). However, absent any factors that might create an appearance of impropriety, a judicial association may accept co-sponsorship or underwriting of an event by other entities (see e.g. Opinions 14-138 [a judicial association may permit a not-for-profit civil rights law firm to co-sponsor or underwrite an event to celebrate the life and work of a deceased judge who previously worked for the entity]; 14-40/14-43 [non-judge members of a bar association may ask law firms and other private entities to underwrite certain events which the bar association sponsors each year for the judicial section]; 12-86 [judicial association may permit non-judicial co-sponsors of an educational conference to raise funds from foundations, bar associations, law schools, and members of the bar]; cf. Opinion 01-29 [administrative judge may invite bar associations and a law school to co-sponsor a conference to improve the administration of justice, where these entities are asked to collaborate to plan the event rather than only fund it]).

         Here, of course, the local restaurant does not propose to underwrite or co-sponsor the entire event, but merely to donate approximately $200 worth of small hors d’oeuvres or appetizers to the judicial association, for enjoyment of the legal community and the public at a cultural celebration. The Committee has previously analyzed in-kind food gifts under the catch-all exception (see Opinions 17-24; 15-122).² In those prior opinions, the would-be donors were attorneys or law firms that regularly appeared before the inquiring judge(s), and the gifts were therefore impermissible (see id.). By contrast, nothing in the present inquiry suggests the restaurant’s interests “have come or are likely to come before” the Unified Court System (22 NYCRR 100.4[D][5][h]). Accordingly, absent any additional factors that might create an appearance of impropriety, the judicial association may accept the gift (see id.).³

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         ¹ The Committee assumes the inquiring judge did not solicit the proposed gift, since any solicitations on behalf of the judicial association must be made solely by non-judges (see e.g. Opinions 14-40/14-43; 12-86; 00-98).

         ² As the present inquiry focuses on whether a judicial association may accept a gift, the Committee assumes the donor is not “a relative or close personal friend whose appearance or interest in a case would in any event require disqualification” (22 NYCRR 100.4[D][5][e]).

         ³ Because the gift is valued at $200, a judge who accepted it personally under the catch-all provision would need to report it “in the same manner as the judge reports compensation in Section 100.4(H)” (22 NYCRR 100.4[D][5][h]; 100.4[H][2] [report must be filed “in the office of the clerk of the court on which the judge serves”]). However, as it is unclear how this rule would apply to a judicial association accepting a gift of food for an event that is open to the public, the Committee declines to impose a reporting requirement here.