Opinion 20-23

January 30, 2020

Digest:         A judge who is on a not-for-profit organization’s board of directors may be listed on the organization’s fund-raising invitation along with all other directors, in the same manner in which his/her name is listed on the organization’s website.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i), (iv); Opinions 18-54; 15-219; 11-136.

Opinion:

         The inquiring judge serves on a not-for-profit educational, civic, or charitable organization’s board of directors. The organization lists all the directors’ names on its website, but apparently does not use traditional stationery and thus does not have a “regular letterhead” as contemplated by Section 100.4(C)(3)(b)(iv). The judge asks if his/her name may be listed on the organization’s fund-raising invitation, along with those of all other board members, in a simple, non-prominent manner. Both on the proposed invitation and on the website, the directors’ names are listed in alphabetical order; however, the website also displays the directors’ photographs while the proposed invitation does not.

         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]). Although a judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]), Section 100.4(C)(3)(b)(iv) provides:

(b) A judge as an officer, director, trustee or non-legal advisor, or a member or otherwise: ... (iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation, but may be listed as an officer, director or trustee of such an organization. Use of an organization’s regular letterhead for fund-raising or membership solicitation does not violate this provision, provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge’s judicial designation.

         We have previously interpreted this “regular letterhead” exception to allow a judge’s name to be listed with all other directors on an organization’s fund-raising invitations (see Opinion 15-219). Specifically, where a judge appears on an organization’s regular letterhead as a director, we said the judge may also permit the organization to include his/her name along with all other directors on the organization’s fund-raising invitations, “as long as the content of the list is the same” (id.). That is, the formatting of the names on the invitation need not be “identical” to the organization’s regular letterhead, “unless the specific formatting reasonably creates an impression that the directors collectively and/or the judge individually are personally soliciting funds or personally inviting people to attend the fund-raiser” (id.).

         Relatedly, we have said a judge may be listed along with his/her fellow directors on a not-for-profit organization’s website and may be identified with an honorific, provided the other directors’ listings include comparable titles (see Opinions 18-54; 11-136). This remains true, “even if the border of each page of the website contains links that solicit donations” (Opinion 11-136).

         Here, the organization’s website lists its directors, including the judge, consistent with Section 100.4(C)(3)(b)(iv) and our prior opinions (see Opinions 18-54; 11-136). That is, the judge’s judicial designation appears alongside comparable designations for medical professionals and others. We thus consider this website page listing to be the equivalent of the organization’s “regular letterhead.”

         The fund-raising invitation likewise lists all directors in precisely the same fashion as they are listed on the website, omitting only their photographs. The alphabetical, text-only listing of the directors’ names is not a prominent feature of the invitation and is both visually and physically separated from the organization’s request for funds.¹ Thus, we conclude the invitation cannot reasonably create an impression that the directors are personally soliciting funds or personally inviting people to attend the fund-raiser. Under the circumstances, the proposed use of the judge’s name and judicial designation on this invitation creates no greater appearance of impropriety than use of the organization’s “regular letterhead” to send a fund-raising letter, which is expressly permitted (22 NYCRR 100.4[C][3][b][iv]).

         The judge therefore need not object to inclusion of his/her name on the invitation or take any other action on the facts presented.

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¹ While not determinative, we note the most direct solicitation (inviting various levels of donations or sponsorships) is made on a separate insert and does not mention the board of directors.