Opinion 24-91

May 9, 2024

Digest:  A judge may not speak at a not-for-profit organization’s annual breakfast, where the organization solicits sponsorships significantly beyond the expected costs of the breakfast.

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(ii), (iv); Opinions 22-57; 16-17; 15-154; 14-193.

Opinion:

          The inquiring judge is active in equal justice and access to justice initiatives and has been invited to speak on a subject “related to [the judge’s] work with the courts” at a not-for-profit entity’s annual breakfast.  The entity makes grants “to organizations meeting the needs of women and girls” and its breakfast is “primarily a celebration of the [fund’s] work” with an opportunity to “hear from funded organizations about how their grants have made a difference” in people’s lives.  Tickets to the breakfast are $50 for general admission and $30 for students, but the fund also “solicits sponsors” for the event.  The judge advises that the fund continues soliciting beyond what is necessary to cover the cost of the event, and usually raises an additional $5,000 to $7,000 to support future grants.

          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]).  Subject to exceptions that do not apply here, a judge “may not be a speaker … at an organization’s fund-raising events” (22 NYCRR 100.4[C][3][b][ii]) and “shall not use or permit the use of the prestige of judicial office for fund-raising” (22 NYCRR 100.4[C][3][b][iv]).

          The propriety of the judge’s proposed speaking engagement depends on whether the breakfast is a fund-raiser, the determination of which involves a consideration of all relevant circumstances, including the stated intent of the organizers (see Opinions 22-57; 16-17; 14-193).

          The fact that there is a charge for admission “is not determinative” (Opinion 14-193).  In general, if the charge for an event “is intended primarily to cover costs and there is no other fund-raising or membership solicitation at or associated with the event, it is not considered a fund-raiser even if the ticket price results in some minimal surplus” (Opinions 22-57).  Conversely, where an otherwise “modestly priced” dinner also involves “substantial, ongoing and prominent fund-raising,” we deemed it to be a fund-raising event and advised that a judge may not be a guest speaker (Opinion 15-154; see also Opinion 16-17 [banquet deemed a fund-raiser where “the institution is ‘seek[ing] donations prior to and at the banquet,’ in addition to journal advertisements”]). 

          While the primary stated purpose of this breakfast is to celebrate the fund’s work, the organizers also solicit sponsors to collect funds significantly beyond the expected cost of the breakfast.  These solicitations in past years have resulted in $5,000 to $7,000 to support future grants.  We conclude, therefore, that the event is a fund-raiser and the judge should not accept the invitation to speak at the event.