Opinion 95-88

June 8, 1995

 Digest:         An administrative judge may accept passively funds, goods or services donated by not-for-profit corporations for the improvement of the physical condition of a large multi-judge urban courthouse, and for the provision of equipment to facilitate the operation of the court, even though the funding of the not-for-profit corporations is publicly organized by law firms which appear in that court. However, neither the administrative judge nor the judges sitting in the courthouse personally may participate in the fundraising. No disqualifications will be required of the judges sitting in the courthouse when the firms appear.

Rules:          22 NYCRR 100.2(a), 100.3, 100.4(c)

Opinion:

         An administrative judge responsible for the administration of the state court system requests the views of the Committee as to the proper response to fundraising efforts by law firms to benefit a large urban courthouse that is severely in need of repair and renovation.

         Two law firms with offices in the county where the courthouse is located, and which appear in the court, have established two not-for-profit corporations whose purpose is to raise private funds for the courthouse. The goal of one is the improvement of the general physical condition of the courthouse, while the goal of the other is to provide amenities for the users of the court, such as sound systems and similar equipment. The identity of the law firms has been made public.

         The administrative judge asks (1) whether the acceptance of funds, goods or services for the purpose stated, and under the circumstances stated, would require the disqualification of the judges sitting in the courthouse when the two law firms appear, and (2) whether such acceptance would undermine public confidence in the independence and impartiality of the judiciary. The administrative judge also asks (3) whether the transfer of the funds to a bar association and the acceptance of the funds from the bar association would be a viable solution if there are ethical constraints on the direct acceptance of the funds from the corporations.

         The Advisory Committee believes, as a matter of principle, that the courts should be maintained by the public first. However, in the present situation, where public appropriations are inadequate to maintain the courthouse, it is not improper for a group of lawyers and others to provide private funds for this purpose, and it is not improper for the City (which maintains the courthouse) or the court system (which administers the court) to accept private funds for this purpose.

         Maintaining and repairing the courthouse is not merely or even primarily for the benefit of the judges presiding there. The public and the lawyers using he courthouse have an even greater interest in its maintenance.

         In the particular courthouse that is the subject of this inquiry, probably 100 or so judges sit in the course of a year. Repairing or renovating this courthouse would not give rise to a perception that any particular judge is being favored or benefitted, and therefore, there is no appearance if impropriety.

         As to the specific questions asked, first, there is no ethical constraint upon, nor is there any cause for disqualification of the judges presiding in the courthouse when law firms, which have participated in the fundraising, appear. Second, there is no ethical constraint upon the administrative judge’s passively accepting funds, goods or services for the court system (see Judiciary Law §212[1][n]). However, neither the administrative judge nor any other judge may participate personally in fundraising. The Committee also points out that much of the proposed benefit to be conferred on the courthouse involves physical maintenance, the responsibility of the City, and therefore, would be a benefit accepted by the City, rather than by the State’s Unified Court System.

         The Committee also notes §100.4 (c) of the Rules of Judicial Conduct, which reads:

(c) a judge may serve as a member, officer or director of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice. He or she may assist such an organization in raising funds and may participate in their management and investment, but shall not personally participate in public fundraising activities. He or she may make recommendations to public and private fund-granting agencies and programs concerning the law, the legal system and the administration of justice.

         The acceptance of funds, goods and services from the not-for-profit corporations established to maintain, repair and renovate the courthouse is well within the parameters of the above-cited rule.

         To answer the third specific question posed by the administrative judge, the acceptance of funds from a bar association for these purposes clearly is proper.

         When the City or the administrative judge accepts funding, goods or services as described in the opinion, all procedures required by statue or rule, if there be any such requirements, should be followed.