Opinion 88-42

April 11, 1988

NOTE: MODIFIED BY RULE 100.4(C)(3)(b)(i)

The Rules Governing Judicial Conduct were amended in 1996. Rule 100.4(C)(3)(b)(i) now provides as follows:

(b) A judge as an officer, director, trustee or non-legal advisor, or a member or otherwise:

(i) may assist such an organization [an organization devoted to the law, the legal system or the administration of justice or an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit] in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities.

Topic:          Judge’s participation in non-profit United Way group.

Digest:         A judge may serve as a member of the Board of Directors of a non-profit United Way group, composed of various civic, community and philanthropic organizations, provided that his name is not listed or used in conjunction with any solicitation of funds and that he does not give investment advice to the group; the Judge may also participate as narrator in a documentary, provided that the documentary is not used in conjunction with fund-raising activities.

Rules:          22 NYCRR 100.5(b)

Opinion:

         An acting City Judge, recognizing that he cannot solicit funds for any organization, inquires whether he may serve as a member of the board of directors of the non-profit United Way organization and whether he may participate “as a narrator in a documentary from the position of a new director on the Board.” He encloses a letterhead of the organization, which merely carries the name and address of the charity without the listing of any names of officers or directors. He also submits a copy of a flyer regarding the work and community services provided by this group. The flyer includes the names and addresses of the 13-member agencies who make up the “United Way” (these include the American Red Cross, Girl Scout Council, YWCA and Volunteer Family Counseling Service, Arthritis Foundation, and Catholic Charities), but does not list the names of any individual officers or directors either of the United Way itself or of the member agencies.

         The permissible scope of a judge’s participation in civil and charitable extra-judicial activities is set forth in Chief Administrator’s Rule 100.5(b) as follows:

(b) Civic and Charitable activities: A judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or her or will be regularly engaged in adversary proceedings in any court.

(2) No judge shall so solicit funds for any educational, religious, charitable, fraternal or civic organization, or use or permit the use of the prestige of the office for that purpose, but may be listed as an officer, director or trustee of such an organization provided, however, that no such listing shall be used in connection with any solicitation of funds. No judge shall be a speaker or the guest of honor at an organization’s fund-raising events, but he or she may attend such events. Nothing in this Part shall be deemed to prohibit a judge from being a speaker or guest of honor at a bar association function.

(3) A judge shall not give investment advice to such an organization, but he or she may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

         Under this rule, a judge is expressly permitted to serve as a member of the board of directors of a civic or charitable non-profit organization, such as the group here in question, subject to certain clearly delineated prohibitions. A judge may not solicit funds nor permit the use of the prestige of his or her judicial office for that purpose, and while a judge’s name may be listed as an officer or director of such organization, that listing may not be used in connection with any solicitation of funds nor may the judge be a speaker or guest of honor at the group’s fund-raising events.

         From the information submitted, it appears that the judge’s name will not in the ordinary course be used in conjunction with the solicitation of funds either by way of letter or use of the flyer since neither of those items list the names of officers or directors.

         The inquiry does not specify the purposes for which the proposed documentary will be used. While there appears to be no prohibition against the judge serving a narrator of the documentary, the manner in which the documentary will be used is critical. If it is to be used solely for educational or informational purposes, then the judge’s participation would be permissible. If, however, the documentary will also, on occasion, be used for fund-raising purposes, which would seem likely, it would be improper for the judge to participate since he would clearly be permitting the use of the prestige of the judicial office for the solicitation of funds.

         The only further cautionary note which should be brought to the judge’s attention is the proscription in subdivision (b)(3) that he shall not give investment advice to the organization while serving as a member of the board.

         This Opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.