September 10, 2020
Digest: A judge may not lend the prestige of judicial office to unequivocally support a grant application of a transition program without addressing any necessary objective facts, qualifications and/or information concerning the judge’s perspective, and personal knowledge and experience with the program.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i), (iii); Opinions 16-95/16-107; 16-02; 14-180; 12-109; 01-100/01-101; 00-44; 98-130; 97-71; 88-94.
A full-time judge asks if they may allow a transition program for formerly incarcerated individuals to list the judge’s name among its supporters in a grant application. The transition program will provide relationship building, goal setting, success planning, job readiness workshops, apprenticeship programs, educational opportunities and other assistance to formerly incarcerated individuals.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) or personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][i]). Nonetheless, a judge may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][b][iii]).
Section 100.4(C)(3)(b)(iii) generally permits a judge to support a not-for-profit organization’s grant application by “providing a judicial perspective on the likely benefits to the law, the legal system, and the administration of justice, or sharing his/her judicial experience concerning the applicant” (Opinion 16-02).
Thus, a judge may write a letter on behalf of a not-for-profit organization’s grant application to assist crime victims, provided the letter describes only the judge’s personal knowledge and experience with the organization and is limited to objective facts (see Opinion 16-95/16-107). Similarly, a judge may write letters supporting: a municipality’s application for a grant to improve the overall safety and accessibility of the municipal facility that houses the court and the court clerk’s office (see Opinion 12-109); an organization seeking funding from the New York State Division of Criminal Justice Services to develop a legal advocacy component in the area of domestic violence (see Opinion 97-71); or a not-for-profit or governmental agency’s application for funding to continue “services provided directly to the court” (Opinion 88-94 [distinguishing between a program “that directly and on a regular basis provides services to the court” and those “only tangentially or indirectly ... involved with the court’s operations”]). A judge also may co-chair a steering committee seeking a million-dollar federal community access grant to integrate and expand mental health services for children and families in the community (see Opinion 00-44) or “act as a consultant to a federal agency providing assistance to crime victims, for the purpose of reviewing grant applications” (Opinion 98-130). Analogously, a judge who regularly refers litigants to a residential substance abuse treatment facility may write a letter supporting the facility’s application to become a participating service provider for insurance purposes (see Opinion 14-180). Likewise, a judge may publicly express his/her views “concerning the performance and professional conduct of attorneys affiliated with organizations that are seeking to enter into a contract with a municipality for the providing of legal representation for indigent criminal defendants” (Opinion 01-100/01-101), although he/she must refrain from commenting on “whether the organization’s bid should be accepted or a particular contract entered into” (id. [emphasis added]).
In each scenario, the projects and programs directly concerned the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][b][iii]). Notably, some involved a legal advocacy project which would apparently represent only one category of litigants (see Opinions 01-100/01-101 [indigent legal defense services]; 97-71 [grant from the division of criminal justice services to fund legal advocacy in the domestic violence area]), or grants that would only benefit crime victims (see Opinions 16-95/16-107; 98-130).
Here, the proposed initiative similarly involves the law, the legal system and the administration of justice, albeit serving only one category of individuals within that legal system.
However, unlike prior opinions, this judge is not being asked to write a letter or otherwise provide objective facts and/or set forth the judge’s perspective, personal knowledge and experience with the organization (see e.g. Opinions 16-95/16-107; 16-02; 01-100/01-101). Rather, he/she would lend only his/her name, and thus the prestige of his/her judicial office, to unequivocally support this grant application without addressing any necessary objective facts, perspective, qualifications and/or information concerning the judge’s personal knowledge and experience with the program. This is impermissible (see 22 NYCRR 100.2[C]).