Opinion 24-153

October 30, 2024

Digest:  Subject to generally applicable limits on judicial speech and conduct, judges who make a charitable donation to a not-for-profit entity may provide the entity with a brief statement about the donation.

Rules:   22 NYCRR 100.0(R)-(T); 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(8)-(9); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); Opinions 24-86; 24-46; 23-223; 23-129; 23-121; 22-19; 21-104; 20-190; 16-12; 13-18.

Opinion:

          The inquiring judge is jointly making an in-kind charitable donation to a not-for-profit entity together with other judges.  The entity has asked them for a “brief statement” about the donation to post on its website and include its upcoming newsletter.  The inquiring judge’s proposed statement explains the judges’ motivation, the occasion, the supplies donated and their intended use, and some additional background.  The judge asks if the proposed statement is permissible.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge’s judicial duties therefore “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]).  Judges may participate in extra-judicial activities that are compatible with judicial office and do not cast reasonable doubt on their impartiality, detract from the dignity of judicial office, or otherwise interfere with their proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  Judges may neither “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]) nor “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).

          Judges may make charitable donations in their own names, individually or together with other judges, and may be identified by name and title in doing so (see e.g. Opinions 24-86; 20-190; 13-18).  They may also “permit the charitable organization to use the judge’s name and title to publicly acknowledge the donation and/or identify themselves as judges” (Opinion 24-86 [citations omitted]).  Further, we have advised that judges who make a charitable donation may participate in charity-initiated thank-you events, such as tours of the facility and “opportunities to meet and take photographs with the staff” (id.); may “submit a press release and accompanying photographs to the media regarding the donations and/or respond to media inquiries about them” (id.); and may “express[] appreciation for the work of a charity in connection with a charitable donation” (id.).

          Thus, this group of judges may provide the entity with a brief statement about their charitable donation, subject to applicable limits on judicial speech and conduct.  For example, the judges must not “make any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]) and must carefully consider whether their statements could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice, or commitment with respect to an issue or to parties that may appear before the judges; or otherwise undermine public confidence in their impartiality and independence (see e.g. Opinion 21-104; see also 22 NYCRR 100.0[R]-[T]; 100.2[A]; 100.3[B][9]).  Additionally, the judges must be mindful not to lend the prestige of judicial office through endorsements, reviews, or testimonials that may be used for advertising, marketing, or publicity (see 22 NYCRR 100.2[C]; Opinions 23-121; 22-19).     

          We reiterate our caution that the judges should “exercise discretion with respect to the contemplated publicity” (Opinion 24-86).  As noted, “we have drawn a line between acts of self-promotion during an election campaign and similar acts outside the judge’s window period” (Opinion 24-46 [advising judge may not pay for media advertisements promoting judge’s speaking engagements because of perception of self-promotion akin to political campaign]; see also Opinion 23-129 [concluding judge must remove online library of educational videos from social media at end of window period because of perception of self-promotion]).

          With respect to the specific language of the proposed statement, we must decline to comment on the specific wording of the judges’ proposed submission, “as we are not in a position to review, edit or otherwise approve/disapprove judges’ proposed writings” (Opinion 23-223 [internal quotation omitted]; see also Opinions 21-104; 16-12).