Opinion 20-81(A)

June 18, 2020

Digest:       A judge (1) may be enrolled in a political party, but may not otherwise be a member of a political organization; (2) may serve on the advisory board of a not-for-profit organization dedicated to preservation of a historic theater, subject to certain limitations; (3) may not create or participate in a Go Fund Me campaign to raise money for a charitable cause, where the judge’s involvement would not remain strictly behind-the-scenes in planning fund-raising but instead would be used to promote the campaign; (4) may join a not-for-profit organization’s board to review scholarship applications from, and award scholarships to, Deferred Action for Childhood Arrivals immigrants; and (5) may use his/her judicial title in internal bar association communications as a bar association committee chair.

Rules:        22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(i), (iv); 100.5(A)(1)(ii); 100.5(A)(1)(b); 100.5(A)(1)(g)-(i); Opinions 15-104; 14-159; 14-132; 09-170; 05-56.

Opinion:

         The inquiring part-time judge is also a practicing attorney in the field of immigration law. The judge has recently assumed the bench and asks several questions, which we will describe and address individually below.

Question 1. May the judge continue membership and involvement with a political club or other such political organization?

         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 must not “directly or indirectly engage in any political activity” unless an exception applies. For example, a judge may “vote and … identify himself or herself as a member of a political party” (22 NYCRR 100.5[A][1][ii]), but is otherwise prohibited from “being a member of a political organization” (22 NYCRR 100.5[A][1][b]). A judge also may not attend politically sponsored events, even for a non-political purpose, and must not make contributions to any political organization or candidate (see 22 NYCRR 100.5[A][1][g]-[i]).

         Accordingly, the judge must not continue membership or involvement with a political club or other such political organization, although he/she may remain enrolled in a political party and may vote (see 22 NYCRR 100.5[A][1][ii]; 100.5[A][1][b]).

Question 2. May the judge serve on the advisory board of a not-for-profit organization dedicated to preservation of a historic theater?

         A judge may engage in extra-judicial activities that do not (1) cast doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge may generally serve as an officer, director or non-legal advisor of a not-for-profit charitable, cultural or civic organization (see 22 NYCRR 100.4[C][3]), but not “if it is likely that the organization … will be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). A judge may assist such an organization in planning fund-raising events and may participate in the management and investment of the organization’s funds but is prohibited from personally participating in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). Also, a judge must not permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]).

         We conclude this judge may serve on the advisory board of a not-for-profit organization dedicated to preservation of a historic theater, subject to the aforementioned limitations.

Question 3. May a judge create or join a not-for-profit organization’s online fund-raiser to provide financial assistance to undocumented immigrants?

         The judge, who practices immigration law, asks if he/she may create or join an online Go Fund Me campaign to help a not-for-profit organization raise money to assist undocumented immigrants. The judge notes the organization specifically wishes to use the judge’s name to promote the Go Fund Me campaign.

         As noted above, a judge may assist a not-for-profit charitable organization in planning fund-raising events and may participate in the management and investment of the organization’s funds but must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). Furthermore, a judge may not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]), including charitable fund-raising (see 22 NYCRR 100.4[C][3][b][iv]).

         Thus, in Opinion 14-132, we said a judge must not participate in a not-for-profit charitable organization’s fund-raising challenge, where each participant is required to publicize his/her own participation and publicly solicit other participants. In Opinion 05-56, we said a judge may not allow a not-for-profit organization to quote him/her in its informational brochure and identify him/her by name and title, where, under the circumstances, “there was no apparent reason to include the judge’s statement about the organization other than to lend the prestige of judicial office to promote the organization” (Opinion 15-104).

         Similarly, the judge may not create or participate in a Go Fund Me campaign to raise money for a charitable cause, where the judge’s involvement would not remain strictly behind-the-scenes in planning fund-raising but instead would be used to promote the campaign (see 22 NYCRR 100.2[C]; 100.4[C][3][b][i], [iv]; Opinions 14-132; 05-56).

Question 4. May the judge serve on a not-for-profit organization’s scholarship review board to review and approve scholarship applications from a certain category of immigrants?

         The judge asks if he/she may serve on a not-for-profit organization’s board to review scholarship applications from Deferred Action for Childhood Arrivals immigrants and participate in selecting individuals for scholarships.

         In Opinion 09-170, the Committee advised that a part-time judge may serve on the board of directors of a local not-for-profit organization that awards scholarships, provided the organization will not be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]), the judge does not personally participate in the solicitation of funds (see 22 NYCRR 100.4[C][3][b][i]), and the prestige of judicial office is not used for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]).

         Here, too, the judge may join a not-for-profit organization’s scholarship review panel, subject to the same limitations.

Question 5. May the judge identify him/herself as a judge in internal bar association communications?

         Finally, the judge says he/she chairs a bar association committee and asks if he/she may identify him/herself as a judge in internal bar association communications, including the bar association directory.

         We have said judicial participation in bar associations and other such legal organizations “is to be encouraged” (Opinion 14-159 [citations omitted]). In general, “a judge need not conceal his/her judicial status when engaging in permissible extra-judicial activities” (Opinion 15-104). Thus, when a judge is volunteering at a not-for-profit educational institution, “[h]e/she may permit the entity to use his/her name and honorific when listing him/her as a volunteer in documents circulated within the organization, assuming other volunteers are also listed with their titles, if such documents will not be used for fundraising” (id.).

         Here, too, the judge may identify him/herself as a judge in the bar association directory or other internal bar association communications where he/she serves as a bar association committee chair.