Opinion 96-77

September 5, 1996

Digest:         (1) A judge’s spouse may utilize a jointly-owned cooperative apartment for fund-raising activities conducted by her/him for charitable organizations but the judge may not attend or participate. (2) The term “economic interest” under Rule 100.0(D) includes ownership of bonds, notes and debentures.

Rules:          22 NYCRR 100.0(D); 100.3(E)(1)( c); 100.4(C)(3)(b)(iv); Opinion 90-77

Opinion:

         A judge inquires whether the judge’s spouse, who is active in several charitable organizations, may utilize their jointly-owned cooperative apartment for fund-raising events.

         Rule 100.4(C)(3)(b)(iv) of the Rules Governing Judicial Conduct states that a judge “shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” for civic or charitable organizations. In the opinion of the Committee, the fact that the judge’s spouse uses their apartment for such activities on behalf of organizations in which the spouse is involved would not violate the letter or spirit of this Rule. However, the judge may not attend or participate in any fund-raising events conducted at the apartment.

         In a previous opinion (Opinion 90-77) this Committee found that it would be inappropriate for a judge’s spouse to conduct a political fund-raiser at their joint residence since such use could readily give rise to an appearance of a direct involvement by the judge in partisan political activity given the underlying public nature of the occasion for the event, i.e., a public contested election. In the view of the Committee, a charitable fund-raising event in which the spouse is involved would not give rise to an appearance of improper involvement by the judge in a prohibited activity.

         The judge also inquires whether the term “economic interest” as defined in Rule 100.0(D) and as used in Rule 100.3(E) as a circumstance which would require disqualification, would include the ownership of debentures, notes or bonds of an entity. Or, put another way, does the term “economic interest” refer only to an equity interest in an entity and not to a creditor relationship?

         The Committee perceives no difference between the two situations. The purpose of the Rule is to require the judge to refrain from participating in litigation in which his or her impartiality may be affected or questioned by reason of a financial interest in one of the litigants. That financial interest exists in both instances. That is, either as the owner of a share of stock or as the owner of a bond or similar debt instrument, the judge would have an economic interest in the organization. Additionally, the specific exclusion of ownership of government securities as a disqualifying circumstance (22 NYCRR 100.0(d)[4]) clearly implies that ownership of securities in non-governmental entities is encompassed by the term “economic interest”, since government securities presumably are debt instruments and not equity interests. Bonds, notes and debentures are securities and, in the opinion of the Committee, the holder of such a security has an economic interest in the issuing entity.