2013-35 (August 6, 2013)
Event; attendance/appearance; Awards & Honors; Speaking; Fundraiser; Prestige of Office; Financial Activities; Financial Disclosure; Disclosure/Disqualification
Rules 1.2, 1.3, 2.11, 3.1 & 3.7

 
Issue:  May a Judicial Official attend, be acknowledged or honored, and speak at a fund-raising event co-hosted by a section of the CBA and a national nonprofit 501(c)(3) law-related organization whose mission is to achieve full recognition of the civil rights of a particular class of citizens through impact litigation, education and public policy work? May a Judicial Official make a donation to the organization at the event or otherwise?
 
Additional Facts: The Judicial Official will not be featured or mentioned on the invitation. While there is no fee to attend the event (a Sunday afternoon cocktail party), there is an expectation that guests will make donations to the organization. The Judicial Official indicated that he/she would recuse himself or herself should the organization or the section ever appear before him/her.
 
Discussion: Rule 1.2 of the Code of Judicial Conduct states that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
 
Rule 1.3 states that a judge “shall not use or attempt to use the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so.”
 
Rule 3.1 states that a “judge may engage in extrajudicial activities, except as prohibited by law.” The Rule states further that when engaging in extrajudicial activities, the judge shall not participate, inter alia, in activities that will interfere with the proper performance of the judge’s judicial duties, lead to frequent disqualification or appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.
 
Rule 3.7 of the Code concerns participation in educational, religious, charitable, fraternal, or civic organizations and activities. Rule 3.7 states, in relevant part:

(a.) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities:…(4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice;….

Comment (2) to Rule 3.7 states that “[e]ven for law related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely on a judge’s independence, integrity, and impartiality.”

Comment (3) to Rule 3.7 states, in part, that “[m]ere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of subsection (a)(4).”

Based upon the information provided, including that the national nonprofit law-related organization engages in impact litigation, education, and public policy work on behalf of a particular class of citizens, the Committee unanimously determined that the Judicial Official should decline to be acknowledged or honored and should not speak at the event, but may attend and make a donation to the organization subject to the following conditions:

1. The organization does not regularly engage in adversary proceedings before the Judicial Official;
2. The Judicial Official’s attendance at the event does not raise concerns about coercion of other potential donors or exploitation of the judicial office and does not demean the office, cast doubt on the judge’s impartiality or interfere with the performance of judicial duties;
3. The Judicial Official should not allow his/her title to be used in conjunction with the event (e.g., by way of a public introduction, award or special recognition, such as sitting at head of table, etc.);
4. If the organization or the section appears before the JO as a party or counsel within a reasonable period of time following the event, the JO should disclose the fact that he/she attended the fund-raising event; and
5. Donations are subject to the following conditions:

   (a.) The Judicial Official should request and obtain adequate assurance from the organization that his or her identity as a donor will not be publicized and that his/her judicial title will not otherwise be used by the organization for promotional purposes; and
   (b.) For any future cases before the Judicial Official in which either organization or section is involved as a party or counsel, the Judicial Official should consider whether the timing, nature and size of any donation may trigger obligations of disqualification or disclosure under Rule 2.11. Specifically, the Judicial Official should consider the possibility that (i) the timing, nature and size of the donation creates an actual personal bias or prejudice under Rule 2.11(a)(1) requiring disqualification, or (ii) that the timing, nature and size of the donation would otherwise create in a reasonable mind an appearance that the Judicial Official would not be impartial, such that the Judicial Official either should recuse under Rule 2.11(a) or disclose and potentially seek remittal in accordance with Rule 2.11(c). In addition, no matter how small the donation, the Committee recommends in light of the Judicial Official’s affirmative obligations under Rule 1.2 that the Judicial Official may wish to take the precautionary measure of disclosing the donation for a reasonable period of time following the donation in any case in which either organization or section appears as counsel or party before the Judicial Official. The Judicial Official also should be mindful of the duty to avoid or minimize disqualifications as suggested by comment to Rule 2.7.

In rendering this opinion, the Committee considered its prior opinions in JE 2010-30 (Judicial Official may be honored at the event that “concerns the law, the legal system, or the administration of justice”); JE 2012-15 (Judicial Official may attend and be honored at the fund-raising event of a law-related non-profit organization); JE 2012-25 (Judicial Official could not accept an award from MADD at a non-fundraising event, because MADD is a victim support and advocacy group that takes strong positions on DUI cases and lobbies actively on behalf of its interests, as well as receiving a fee from court participants referred to the DUI victim impact panel program); Emergency Staff Opinion 2012-29 (Judicial Official could not accept an award from the Susan B. Anthony Project, a victim support and advocacy group); JE 2009-32 (Judicial Official should not be honored at a fund-raising event of a non-profit organization that engages in litigation, advocacy and political action); JE 2008-18 (Judicial Official may contribute to a legal aid organization and disclosure of such contributions generally is not required unless the amount is such that the Judicial Official’s impartiality might reasonably be questioned); and JE 2012-30 (Judicial Official may make a donation to and/or pay for admission to and attend a fund-raising event hosted by The Children’s Law Center, an organization that actively participates in ongoing advocacy on behalf of children at the state level, but such donation is subject to satisfaction of several conditions).  

Committee on Judicial Ethics