Opinion 24-86

May 9, 2024

Digest:  A group of judges may make charitable donations to local hospitals and be publicly recognized for it.  The judges need neither disclose the donations nor disqualify themselves should the hospitals appear before them.

Rules:   22 NYCRR 29.1; 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); 100.3(E)(1); Opinions 24-46; 23-129; 23-121; 23-52; 22-19; 20-190; 20-132; 20-108; 18-05; 15-103; 13-18; 05-56; 04-140; 99-54.

Opinion:

          Several judges have decided to make a joint charitable donation to certain local hospitals in their own names by using their personal funds to purchase medical supplies.  The judges will personally deliver the supplies and ask if they may participate in tours of the hospital clinics which will use the supplies; permit the hospitals to organize events publicly acknowledging the donations; have photos taken with the supplies and hospital personnel; and submit photographs or press releases to the media regarding the donations.  They also ask about potential disclosure or disqualification obligations as a result of these activities.

          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’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 capacity to act impartially, detract from the dignity of judicial office, or otherwise interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  Judges may not personally participate in solicitation of funds or fund-raising (see 22 NYCRR 100.4[C][3][b][i]) and must not use 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]).

          Judges may make charitable donations in their own names, either alone or with a co-judge, and may be identified by name and title in doing so (see e.g. Opinions 20-190; 13-18; 04-140).  Thus, they may permit the charitable organization to use the judge’s name and title to publicly acknowledge the donation (see Opinions 20-132 [listed with other donors on memorial plaque for statue honoring a federal judge]; 13-18 [sign displayed during fund-raising golf outing]) and/or identify themselves as judges (see Opinion 18-05 [advertisement in church’s weekly bulletin]). 

          Accordingly, the inquiring judges may permit the hospitals to publicly recognize their donations, and may participate in hospital-initiated thank-you events such as hospital tours, opportunities to meet and take photographs with the staff, or the like.  The judges may likewise submit a press release and accompanying photographs to the media regarding the donations and/or respond to media inquiries about them.  To the extent the judges wish to take photographs in a courthouse, any photography or videotaping inside the courthouse is subject to administrative approvals (see 22 NYCRR 29.1) and must not interfere with judicial duties (see 22 NYCRR 100.3[A]; 100.4[A][3]).

          Similarly, we see no impropriety in expressing appreciation for the work of a charity in connection with a charitable donation (cf. Opinion 99-54 [expressing appreciation for care provided to judge’s parent]).  Of course, 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; 20-108; 15-103; 05-56).

          We nonetheless caution the judges to exercise discretion with respect to the contemplated publicity.  As we advised in Opinion 24-46:

Under the rules, a judge “must act with considerable self-restraint” to maintain public confidence in the judiciary (Opinion 23-129).  In this regard, we have drawn a line between acts of self-promotion during an election campaign and similar acts outside the judge’s window period (see id. [where judge’s collection of social media videos “will readily be perceived as a campaign of self-promotion,” they must be removed at the end of the window period]). 

In Opinion 24-46, we said a judge “should not pay for media advertisements promoting the judge’s upcoming speaking engagements,” as they “would easily be perceived as a form of self-promotion appropriate to a judicial campaign.”

          Finally, the judges ask about their ethical obligations if the hospitals were to appear before them.  “Ordinarily, a judge need not recuse or disclose after making a charitable donation, as most contributions are relatively modest and not essential to the operation of the charity” (Opinion 23-52 [internal quotation marks omitted]).  In our view, a judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) in matters involving a hospital, merely because the judge has publicly donated medical supplies to the hospital as described herein.  Accordingly, the judges need neither disclose the donations nor disqualify themselves should the hospitals appear before them.