Opinion 23-132
October 26, 2023
Digest: A treatment court may accept a donation of toiletries from a local bar association to be given to court participants by treatment court staff.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i), (iv); Opinions 22-175; 20-190; 08-177; 02-77; 00-98.
Opinion:
The inquiring judge, who presides in a treatment court, has learned that a bar association’s charitable committee is conducting a toiletry drive to solicit everyday household items (such as toiletries, socks, pens, and feminine products) for the benefit of successful treatment court participants.[1] An attorney in private practice solicited these items in the name of the bar association’s committee and is collecting them at the attorney’s law office, with the intention of delivering all items received as donations (or purchased with donated funds) to the treatment court office. On learning of the project, the judge asked the attorney to put the project on hold pending a determination of its propriety under the Rules Governing Judicial Conduct. The judge now asks if it is permissible to accept a donation of toiletries from a local bar association to be given to court participants by treatment court staff.
A judge must always avoid any appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner to promote 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]). Therefore, a judge must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of judicial prestige for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]).
On the facts presented, the bar association’s charitable committee is undertaking its own independent solicitation away from court premises, on its own initiative. Unlike Opinion 20-190, this does not create any appearance that the judge or the treatment court is engaged in impermissible solicitation of funds or in-kind donations; if anything, it is somewhat more analogous to a “friends committee” consisting entirely of non-judges raising money for a judicial association (cf. Opinion 00-98).
Moreover, there is nothing inappropriate about the court accepting a charitable donation of basic toiletries from a bar association which it will simply pass along to drug court participants. We have advised that a judge may participate in a not-for-profit entity’s “backpack program” which provides a personalized gift to each adoptee and/or adoptive parent following a finalized adoption (see Opinion 22-175). Here, too, no gifts or benefits would be provided to the judge or to treatment court staff, as the court would act simply as an intermediary to make the bar association’s eminently practical gift available to successful treatment court participants.
Since the program does not involve any impermissible commercial fund-raising, or political activity, and is unlikely to create any appearance of impropriety, it is ethically permissible.
[1] These products are basic household essentials, rather than fundamentally promotional items such as movie passes and restaurant coupons (cf. Opinions 08-177; 02-77). Clearly, a pen labeled with the name of a law firm or sporting goods store is an advertisement, while a pen labeled with the name of its manufacturer is not.