Opinion 22-79

May 5, 2022

Digest:    A judge may not perform in a rock band’s annual benefit concert, even if the judge’s name and judicial status will be omitted from advertisements. The judge may not sell concert tickets to friends, but may sell to family members.

Rules:     22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); Opinions 20-57; 19-09; 15-171; 98-155; 98-62; 92-79; 90-97.

Opinion:

         The inquiring full-time judge is also a musician. Before assuming the bench, the judge was a member of a rock band along with several other government employees and elected officials. The band presented a benefit concert once a year and donated the proceeds to certain not-for-profit organizations.¹ The band promoted its concert in advertisements that included the name of each band member along with their government position. The band is now planning another fund-raising concert, and the judge asks if it is permissible to perform with the band and/or sell tickets to the event.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on their capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Although a judge may assist a not-for-profit cultural or fraternal organization in “planning fund-raising,” the judge may not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]). Nor may a judge permit the use of the prestige of judicial office for fund-raising or membership solicitations (see 22 NYCRR 100.4[C][3][b][iv]).

1. May the judge participate in the benefit concert and permit their judicial position to be listed?

         We have said that judges may not perform in a theatrical production – even in a “cameo” role - when the purpose of the event is to raise funds (compare Opinions 20-57 [judge may not perform in a play as part of a fund-raiser for a religious organization]; 92-79 [judge may not participate in a play in a “cameo” role for a charitable fund-raiser]; with Opinions 98-155 [judge may perform in a not-for-profit organization’s presentation of songs from an operetta, provided the performance is not a fund-raising event]; 19-09 [judge may perform first-person story of the judge’s childhood or cultural background for a not-for-profit organization provided “the show is not a fund-raiser”]).

         However, in some instances, we have found that a judge’s proposed involvement in a fund-raising event is sufficiently minimal that the judge may participate without any appearance of impropriety. For example, we said a part-time judge may play in a charity softball game as either a player or an umpire, where the judge would not sell tickets to the game or seek pledges (see Opinion 90-97). Although we did not explain our reasoning in detail, it appears the judge’s role as one player or umpire out of numerous participants was essentially de minimis and could not reasonably be seen as personal participation in fund-raising (id.)² Moreover, we said that a part-time judge, who was also employed as a musician, may perform at a fund-raising event for a not-for-profit organization, “provided that the judge’s name and title are not used in any advertising, and the judge’s participation is not a prominent or substantial part of the event” (Opinion 98-62).

         The rock band appears to have approximately ten members, and each member of the band is a government employee or official who will be identified by name and office or employment in advertising and in local media coverage. That is, the band appears to trade on its members’ governmental positions in promoting the event. Given that the band is both the organizer of the benefit concert and the sole scheduled entertainment, it cannot be said that the judge’s participation in the event would be minimal or insubstantial within the meaning of prior opinions. Therefore, as the concert’s purpose is to raise funds for charity, the judge’s participation is impermissible.

2. May the judge participate if the judge’s name and judicial status is not advertised?

         In general, prohibited conduct is not made permissible by obscuring or concealing the judge’s name and/or judicial status (see Opinion 19-09). Here, too, the analysis “does not change if the judge performs anonymously and/or uses a pseudonym” (id.).

3. May the judge sell tickets to friends and family?

         Although the ethical rules prohibit judges from personal solicitation of funds or other fund-raising activities (see 22 NYCRR 100.3[C][3][b][i]), we have nonetheless carved out a narrow exception for family members based on the “clear and powerful motivation” of the familial relationship and the judge’s unambiguous disqualification from hearing their cases (see Opinion 15-171 [noting that “if anyone is almost perfectly immune from experiencing any pressure or coercion due to a judge’s judicial status, it is surely the judge’s closest family members”]). Accordingly, we conclude the judge may sell tickets to the benefit concert to family members within the sixth degree of relationship “without reference to [the judge’s] judicial position” (id.).

         However, the judge must not sell tickets to friends (id.). The reasons that permit a judge to solicit funds from family members do not exist in the context of friendships (id. [noting that “judges are likely to underestimate the influence their judicial status may bring to bear on a friend, while the public is likely to be extremely sensitive to it”]).

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¹ The venue did not receive a portion of the admission fee, but instead profited from concessions if attendees purchased food or drink during the performance.

² A softball game often has 21 participants (two full teams and an umpire).