Opinion 22-15(B)

January 27, 2022

Digest:         (1) A judge may not raise funds from friends, neighbors, or acquaintances, but may create an online fund-raising tool if it will be used only to solicit donations from family members.

(2) A judge may serve on a bar association committee established to address mandated representation.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(b)(i), (iv); Opinions 21-88; 20-171; 15-229; 15-171; 12-93; 05-66; 04-129; 02-84.

Opinion:

         We address two questions from a full-time judge about fund-raising and participation in bar association activities. First, the judge asks if it is permissible to engage in fund-raising for a not-for-profit religious organization by creating an online “store” to sell popcorn and “sending the link to [the judge’s] email contacts” with no further involvement or follow-up.¹ Second, the judge asks if they may be a member of a bar association’s committee on mandated representation. The committee is charged with studying issues concerning how the state and its subdivisions may ensure both quality representation and fiscal responsibility. The committee (i) makes recommendations to the bar association’s executive committee on these issues, (ii) sponsors CLE programs, (iii) proposes and comments on legislation and court rules, and (iv) identifies ways for indigent defense providers to share resources regionally.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Because a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a judge’s extra-judicial activities must be compatible with judicial office and must not cast doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge may be involved in “planning fund-raising” strictly behind the scenes and may “participate in the management and investment” of a not-for-profit religious organization’s funds, but must not personally participate in the solicitation of funds or other fund-raising activities (22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]; cf. 22 NYCRR 100.2[C] [judge must not lend the prestige of judicial office to advance any private interests]).

1. Fund-Raising

         In general, judges may not engage in fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). On its face, the prohibition has no limitation and thus applies broadly to soliciting funds from anyone, including friends, neighbors, and acquaintances. However, we have carved out a narrow exception permitting a judge to solicit funds from family members within the sixth degree of relationship, provided the judge does not reference the judge’s judicial title or status in doing so (see Opinions 21-88; 20-171; 15-171). The inquiring judge may therefore create an online fund-raising tool and distribute the link to the judge’s own family members. However, the judge must not share the link with non-family member contacts, even if the judge would not make any comment and would not follow up with the recipient.

         For completeness, we note that a judge may give a not-for-profit religious organization the names of potential contributors, but may not permit the use of the judge’s name in any solicitation (see Opinion 05-66).

2. Bar Association Committee

         As we have frequently advised, participation in bar associations “is to be encouraged” (Opinion 12-93; see e.g. Opinions 15-229 [vice president or president of bar association]; 02-84 [co-chair of a professional ethics committee of a local bar association]; 04-129 [co-chair of a county bar association’s Legal Referral Service Committee]; 22 NYCRR 100.4[C][3] [a judge may serve as a member, officer, or director of an organization or government agency devoted to the improvement of the law, the legal system or the administration of justice]).

         We see no reason for a different result here. We therefore conclude the judge may serve on a bar association committee that is concerned with mandated representation of indigent defendants, subject to generally applicable limitations on judicial speech and conduct.

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¹ The fund-raiser is facilitated by a popcorn purveyor. An organization may raise funds by having its members set up individual online “stores” on the popcorn purveyor’s website and email their resulting “store” link to friends and family. When recipients click through and order popcorn, the orders are processed and fulfilled by the popcorn purveyor, which remits 50% of the proceeds to the organization.