Activities, Including Fundraising, on Behalf of A Not-for-Profit Corporation

July 18, 1995

CJE Opinion No. 95-4

A judge has requested advice from this Committee concerning the applicability of the Code of Judicial Conduct to the activities of a certain Task Force described below. (While the request is couched in terms of the actions of a "not-for-profit corporation" and "judges" in general, we respond as if the judge were asking as an individual judge.)

The Task Force ("Task Force") was created by the Chief Justice of the Supreme Judicial Court and the Chief Justice for Administration and Management "to explore and implement pilot programs to reinvent the justice system with community input and guidance." To that end the Task Force was authorized to conduct town meetings and produce project proposals for submission to the Chief Justices. You are a co-chair of the Task Force, which is comprised of judges, clerks, probation officers, social workers, elected officials, and other community representatives.

In February of 1995, the Task Force submitted an application to the National Center for State Courts to be selected as one of several local host sites for an October, 1995 National Town Hall Meeting via videoconference on "Improving Court and Community Collaboration." This application was prepared by a separately formed Ad Hoc Video Conference Planning Committee comprised of members of the Task Force as well as judges and lawyers from other counties who are not members of the Task Force. It has now been decided that a not-for-profit corporation will be substituted as the applicant to the National Center for State Courts and would be "the organizing and hosting entity". In order to participate as a site for this videoconference, it will be necessary to obtain funds for food, satellite fees, technical assistance, postage, supplies and other administrative expenses. Potential funding sources are foundations, charitable trusts, non-profit corporations, business corporations and individuals. You expect that such fund-raising will be done by the not-for-profit corporation or by a committee separate from the Task Force or Planning Committee. If a separate fund-raising committee is set up, members of the Planning Committee (other than judges) may be on it.

Specifically, you ask:

  1. Whether a judge may assist in the organization and presentation of the videoconference?
  2. Whether a judge may serve as an original incorporator of the not-for-profit corporation?
  3. Whether a judge may serve as an officer or director of the proposed not-for-profit corporation?
  4. Whether a judge may serve on an advisory committee to the not-for-profit corporation, and if so, whether his or her name may appear on the corporation's letterhead or brochures?
  5. Whether a judge may engage in fund-raising activities on behalf of the not-for-profit corporation from foundations, charitable trusts, and similar entities?
  6. Whether a judge may make financial contributions to the not-for-profit corporation for the purposes stated above?

The relevant provision of the Code of Judicial Conduct is Canon 4. That Canon recognizes that "[a]s a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice." See the American Bar Association's Commentary to Canon 4 in Thode, Reporter's Notes to Code of Judicial Conduct, p. 19 (A.B.A. 1973). Accordingly, Canon 4 allows a judge "subject to the performance of his judicial duties" to engage in certain "quasi-judicial activities, if in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him." The specific provisions of Canon 4 that would apply to your situation are Canon 4(A) which provides:

"...[a judge] may speak, ..., and participate in other activities concerning the law, the legal system, and the administration of justice.";

and Canon 4(C) which specifies:

"...[a judge] may serve as member, officer or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice. He may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. He may make recommendations to public and private fund granting agencies or projects and programs concerning the law, the legal system, and the administration of justice."

In view of the circumstances of its creation and the nature of its mandate, the Task Force is clearly "an organization devoted to the improvement of the law, the legal system, or the administration of justice," as would also be the Ad Hoc Video Conference Planning Committee, the proposed not-for-profit corporation, and its committees. Thus, you may serve on these entities, even as an officer or director, and participate in the videoconference and their other activities, other than personally participating in their fund-raising activities (as discussed below). Your name may also appear on their letterhead and literature. While the Canon does not explicitly address incorporators, it is difficult to identify any considerations - at least for Canon 4 purposes - that would warrant a prohibition on being an incorporator while allowing service in these other capacities. Indeed, it would reasonably be anticipated that judges would often be the prime movers in efforts to improve the legal system and administration of justice.

Fund-raising, however, calls for closer scrutiny. Under Canon 4(C), a judge may assist an organization devoted to the improvement of the law, the legal system, or the administration of justice "in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities." Thus, you may assist the Task Force, the Planning Committee or the not-for-profit corporation in organizing fund-raising activities, in determining fund-raising strategies, and deciding how funds collected should be invested or spent. As you may note, by allowing such activities, Canon 4 is more permissive than Canon 5, dealing with civic and charitable activities. This difference is based on a "practical" consideration "that the membership of many of these Canon 4 organizations is entirely, or substantially, made up of judges, whereas judges normally comprise a small percentage of civic or charitable organizations. To deny any judicial participation in fund raising in the former situation would be effectively to exclude such organization from engaging in projects that require substantial financing." Thode, supra, p. 76-77. However, while you may engage in the activities described above, you must not have any contact with potential donors, either by personally soliciting funds or by signing solicitations. (While, as noted above, your name may appear on the letterhead and literature generally used by these entities, it should not appear on letters and other materials used exclusively for fund-raising.) Such insulation from donors "reduc[es] the possible appearance of impropriety or lack of impartiality implicit in fund raising by judges." Ibid., p. 77. (1)

It should be noted that the Code of Judicial Conduct prohibits a judge from being a speaker or guest of honor at a fund-raising event conducted by an educational, religious, charitable, fraternal, or civic organization. See Canon 5(B)(2). Canon 4 is silent as to whether a similar prohibition would apply to a fund-raising event of an organization devoted to the improvement of the law, the legal system, or the administration of justice. This Committee concludes, however, that it would although you may attend such events. Being a speaker or guest of honor brings you into direct contact with donors (even if only collectively). Moreover, as in the case of civic and charitable fund-raising activities, people may feel "pressured into attending" events at which you are speaking or honored. Steven Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges. (The American Judicature Society 1984), p. 32. "Attendance at such events cannot be anonymous, and the likelihood is great that the honoree would be unable to avoid learning who had or hadn't chosen to be present. This situation presents a very real danger of de facto coercion, which, even if unintended, amounts to a misuse of the judicial office." Ibid.

Finally, nothing in the Code would prohibit you from making contributions to the not-for-profit corporation.

To recap, of the six questions you pose, numbers 1, 2, 3, 4 and 6 are all answered in the affirmative. As to number 5, dealing with fund-raising, you must observe the limitations discussed above. By doing so, you will avoid "cast[ing] doubt on [your] capacity to decide impartially any issue that may come before [you]" and thereby comply with Canon 4.

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1. Canon 4(C) does allow a judge to "make recommendations to public or private fund granting agencies on projects and programs concerning the law, the legal system, and the administration of justice." While this provision does not allow you to personally solicit such agencies for funds for the videoconference, it does allow you to respond to their inquiries about the videoconference and the other work of your Task Force.