Pennsylvania Code › Title 207 - JUDICIAL CONDUCT › Part II - CONDUCT STANDARDS › Chapter 33 - CODE OF JUDICIAL CONDUCT › Subchapter B - FORMAL OPINIONS › Section 15-3 - Certain Fundraising Activities

Current through Register Vol. 54, No. 28, July 13, 2024
The Ethics Committee of the Pennsylvania Conference of
					 State Trial Judges ("Ethics Committee") regularly receives inquiries regarding
					 the propriety of participating in fundraising events on behalf of civic and
					 charitable activities in which judges are involved. Because of the frequency of
					 such inquiries, the Ethics Committee has decided to issue this Formal Advisory
					 Opinion in order to provide guidance to judicial officers subject to the Code
					 of Judicial Conduct ("Code").
Canon 3 of the Code addresses a judge's involvement in
					 personal and extrajudicial activities. It provides: "A judge shall conduct the
					 judge's personal and extrajudicial activities to minimize the risk of conflict
					 with the obligations of judicial office."
Comment (1) under Rule 3.1 states:
. . . judges are permitted and encouraged to engage in
					 educational, religious, charitable, fraternal or civic extrajudicial activities
					 not conducted for profit, even when the activities do not involve the law[.]
					 and Comment (2) states:
[p]articipation in both law-related and other extrajudicial
					 activities helps integrate judges into their communities, and furthers public
					 understanding of and respect for courts and the judicial system.
Rules
					 3.1,
					 3.6 and
					 3.7 address the broad limitations
					 and concerns regarding the circumstances in which judges may properly
					 participate in such activities. For example, judges may not participate in
					 extrajudicial activities that "will interfere with the proper performance" of
					 their judicial duties; "lead to frequent disqualification;" "reasonably appear
					 to undermine the judge's independence, integrity, or impartiality;" "engage in
					 conduct that would reasonably appear to be coercive;" "hold membership in," or
					 "use the benefits or facilities" of, an organization "that practices invidious
					 discrimination on the basis of race, sex, gender, religion, national origin,
					 ethnicity, disability or sexual orientation;" or be "an officer, director,
					 trustee, or nonlegal advisor" of an organization that "is likely . . . to be
					 engaged in proceedings that would ordinarily come before the judge or will be
					 regularly engaged in adversary proceedings in any court."
This Formal Advisory Opinion addresses the nature and
					 extent of fundraising activities held on behalf of civic and charitable
					 organizations in which a judge's participation is permissible.
In pertinent part, Rule
					 3.7(B) of the
					 Code provides:
* * * * *
(2) A
				  judge shall not personally solicit funds for any educational, religious,
				  charitable, fraternal or civic organization, or use or permit the use of the
				  prestige of the judicial office for that purpose, but may be listed as an
				  officer, director or trustee of such an organization. A judge shall not be a
				  speaker or the guest of honor at an organization's fundraising events that are
				  not for the advancement of the legal system, but may attend such
				  events.
(3) A judge shall not give
				  investment advice to such an organization.
* * * * *
The prohibition against judges
personally
soliciting funds for any educational, religious, charitable, fraternal or civic
					 organization, or using or permitting the use of the prestige of their office
					 for that purpose, is a change from the Code of Judicial Conduct that was in
					 effect prior to July 1, 2014. With respect to those types of organizations, the
					 prior code stated "Judges should not solicit funds . .
					 ."1The current Code, effective July 1, 2014, added
					 the word "personally." The prohibition applies regardless of how worthwhile the
					 organization or its activities may be, and it prohibits judges from being the
					 guest speaker or guest of honor at fundraising dinners or events that are not
					 for the advancement of the legal system. Judges, however, may attend such
					 events and contribute to them subject to the broader limitations of the
					 Rules.
Faced with reduced budgets and shrinking charitable
					 contributions, organizations have turned to novel and creative fundraising
					 efforts to swell the crowd or otherwise raise money by involving judges. The
					 Ethics Committee has been presented with a wide variety of such efforts.
					 Without attempting to offer an all inclusive list of all the potential
					 activities that fall within the ambit of Rule 3.7(B), they have included using
					 a judge as an attraction or celebrity participant such as Dancing with the
					 Stars, Competing with the Stars in Sporting Events, Celebrity Auctioneer and
					 Celebrity Contributor. While celebrities and other government officials may
					 lend their personal, professional or other forms of celebrity status to the
					 fundraising efforts of an organization, such activity by a judge is prohibited.
					 In sum, a judge may not permit an organization to capitalize on, exploit or
					 showcase a judge's attendance at or participation in such events by advertising
					 that fact or issuing invitations citing the judge's attendance or participation
					 in advance of the event. A judge who allows himself or herself to be used in
					 this manner is engaged in a solicitation of funds in violation of Rule
					 3.7(B)(2).
This does not mean that a judge is precluded from receiving
					 a well-earned award from an organization or even being recognized at an event.
					 It means the judge cannot allow his or her presence at the event or the fact
					 that he/she will receive an award at it be used to promote a fundraising event
					 unless the exception for the advancement of the legal system applies. The
					 critical harm to be avoided is the exploitation of the judicial office.
Therefore, while judges may attend fundraising events that
					 do not violate the broader prohibition of reflecting adversely upon the judge's
					 impartiality or interfere with the performance of the judge's judicial duties,
					 a judge should not be featured as a highlight of any such event. Accordingly,
					 advertising the judge's presence, placing the judge in a strategic position to
					 influence potential customers or contributors, having a judge endorse a
					 fundraising event or product, or having a judge sell tickets, may each lead to
					 effects the Code is designed to prevent. These include making people feel
					 obligated to contribute or otherwise participate in the event; enabling them,
					 or others, to believe they are currying favor with the judge; diminishing the
					 office of judge by turning it into a marketing tool; and pressuring other
					 judges into participating in similar causes. A judge who allows himself or
					 herself to be used in this manner is engaged in the solicitation of funds in
					 direct violation of Rule
					 3.7(B)(2).
					 Because of the overall prophylactic purpose of this Rule, the worthiness of the
					 cause for which the funds are being raised is irrelevant.
If, after considering the foregoing principles, a judge
					 decides to attend or participate in a fundraising event, additional
					 consideration must be given to the mandate of Rule
					 3.7(A) that a
					 judge's "avocational activities do not detract from the dignity of their
					 office". Accordingly, the indicia of the office of judge, including the
					 judicial robe, gavel and courtroom, should never be utilized or depicted in any
					 manner which would compromise respect for the judiciary or the judicial
					 process. Attendance at, or participation in events that do so, would also be
					 prohibited by Rule
					 3.7.
This Opinion is obviously not intended as an exhaustive
					 discussion of all of the potential activities permitted or prohibited under the
					 Code. Instead, its primary focus is to address how judges may participate in
					 the fundraising aspects of civic and charitable activities without running
					 afoul of Rule
					 3.7 's prohibition against using
					 or permitting the use of the prestige of the judicial office for the
					 solicitation of funds on behalf of those organizations in which they are
					 involved. By remaining sensitive to the potential exploitation of the judicial
					 office-or more specifically, the "judge as judge"-the salutary purposes
					 animating the Code will be better served and the preservation of an independent
					 judiciary can continue to be assured.
Commonly referred to as "the rule of reliance," Preamble
					 (8) of the Code of Judicial Conduct provides:
The Ethics Committee of the Pennsylvania Conference of
					 State Trial Judges is designated as the approved body to render advisory
					 opinions regarding ethical concerns involving judges, other judicial officers
					 and judicial candidates subject to the Code of Judicial Conduct. Although such
					 opinions are not binding per se upon the Judicial Conduct Board, the Court of
					 Judicial Discipline or the Supreme Court of Pennsylvania, action taken in
					 reliance thereon and pursuant thereto shall be taken into account in
					 determining whether discipline should be recommended or imposed.
To obtain the "rule of reliance," an individual subject to
					 the Code of Judicial Conduct shall present to a member of the Ethics Committee
					 a particular factual scenario, in writing, to which the inquirer seeks advice
					 regarding his/her prospective conduct.
To reiterate, the purpose of this Formal Advisory Opinion
					 is to provide guidance on a matter of general importance to the Conference. It
					 is not a substitute for an advisory opinion by the Ethics Committee to an
					 individual judicial officer on specific facts.
1 Canon 5B(2) of the "old" Code
					 of Judicial Conduct.