Opinion 21-88

July 20, 2021

Dear :

         We respond to your inquiry (21-88) concerning two aspects of your involvement with a not-for-profit charitable or civic entity that is renovating a historic building for community use.

         First, you ask if you may raise funds for the organization by selling raffle tickets to members of your family.¹

         Under the Rules Governing Judicial Conduct, 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]). Where we have carved out exceptions to the ban on personal solicitation, we do so with extreme caution, and only if 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 (see Opinion 15-171). As relevant here, we loosened the ban on personal solicitation of funds from members of the judge’s family within the sixth degree of relationship (see Opinions 16-153; 15-171).² We reasoned that “[t]he public will readily appreciate that a judge’s 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” (Opinion 15-171). 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” (id. [citations omitted]).

         Accordingly, assuming the raffle is lawful, we conclude you may sell raffle tickets to your family members within the sixth degree of relationship (second cousin or closer) to raise funds for a not-for-profit charitable or civic entity, provided you make no reference to your judicial office and do not otherwise lend the prestige of judicial office to your solicitations.

         Second, as you are a part-time attorney judge, you ask if you may represent the not-for-profit organization pro bono.

         While a part-time attorney judge may practice law, they “shall not practice law in the court on which the judge serves, or in any other court in the county in which [their] court is located, before a judge who is permitted to practice law, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto” (22 NYCRR 100.6[B][2]; see also Opinions 09-110; 92-35).

         Accordingly, we conclude you may represent the not-for-profit organization at issue, although not in your own court or in another court in the same county before another part-time attorney judge (see 22 NYCRR 100.6[B][2]; Opinion 09-110).

         Moreover, as a judge may make charitable contributions to a not-for-profit charitable or civic organization, we see no reason why you cannot do so pro bono.

         For your convenience, we enclose Opinions 16-153; 15-171; 09-110; 92-35.

                                                 Very truly yours,

                                                 Margaret T. Walsh

                                                 Supreme Court Justice

                                                 Committee Co-Chair

                                                 Lillian Wan

                                                 Acting Supreme Court Justice

                                                 Committee Co-Chair

Encls.

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¹ We note the specific relatives you mention (siblings, nieces, and nephews) are within the second and third degrees of relationship.

² We have “construed the term ‘member of the judge’s family’ to presumptively include relatives within the sixth degree of relationship” (Opinion 15-171, fn 5).