June 8, 1989

The Ethics Advisory Committee has been asked for its opinion as to whether a judge may assist in fund-raising for a charitable or civic organization by participating in a "dunking booth" at a bar convention or midwinter meeting of the bar. The funds raised in this manner would be used for a drug prevention program in the public schools.

It is the committee's opinion that the Code of Judicial Conduct prohibits such fund-raising activities.

Canon 5B of the Utah Code or Judicial Conduct provides, in pertinent part:

        Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

            (2) A judge should not 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. (Emphasis added).

In Informal Opinion 390 of the American BarAssociation's Committee on Ethics and Professional Responsibility, the committee explained that the reference to "charitable" enterprises in Canon 25, the precursor to Canon 5B(2), applies "equally to solicitation for funds for the establishment of an art museum or for educational purposes, or other matters of this sort." See also, Informal Opinion 866.

In Informal Opinion No. 603, the Committee on Ethics and Professional Responsibility held that "it is ordinarily not possible (for a judge] to solicit for charities without giving ground for reasonable suspicion that he is utilizing the power and prestige of his office to persuade or coerce others to contribute." The committee held again that Canon 25 applies equally to solicitation of funds for purposes other than charitable, such as philanthropic, civic, and ecclesiastical enterprises. Accordingly, Canon 5B applies to fund-raising for an "educational purpose" such as the establishment of drug prevention programs at the schools.

This committee has previously commented on Canon 5B's fund-raising prohibition in Informal Opinion No. 88-4 and Informal Opinion No. 89-1. In Informal Opinion No. 88-4 the committee was asked whether a judge could serve on the Board of Directors of United Way. The committee held that the judge could hold a position on the board as long as United Way was "not likely to be engaged in adversary proceedings and the judge is not involved in the fund-raising activities of the organization or permits the use of the judicial office for that purpose." Unlike United Way, the bar convention or a midwinter meeting of the bar would be attended by people who are likely to be engaged in adversary proceedings before the court. Furthermore, the activity proposed by the judge is strictly for a fund-raising purpose.

As this committee pointed out in Informal Opinion No. 88-4, the Federal Advisory Committee on Judicial Activities has also discussed the fund-raising issue in several advisory opinions. That committee has concluded that a judge may serve on the managing boards of the Salvation Army, the Red Cross, or religious, fraternal or charitable corporations, or a hospital board, but the judge may not solicit funds for any of these organizations or permit the use of the prestige of his office for that purpose. See Advisory Opinions Nos. 2, 12 and 28.

In Opinion No. 89-1, this committee held that a Justice of the Peace could serve as a member of the local Youth Coordinating Council (YCC), so long as the Justice was not involved in fund-raising for the organization or permitted the use of the judicial office for that purpose.

The Federal Advisory Committee on Judicial Activities in Advisory Opinion No. 32 found that a judge who was chairman of the Finance Committee, or an Area Council of the Boy Scouts of America, was prohibited from soliciting board members of the Council and a few trust funds for financial support, or the Area Council. In finding that such fund-raising was prohibited, the committee addressed the fact that only certain persons were being solicited. The committee held: "Neither the canons nor our previous opinions make any exception of persons who can be solicited. The solicitation by a federal judge of funds for a charitable organization, even tough the solicitation is to a limited class of persons, is forbidden by the Code." Accordingly, here, even though the judges participating in the dunking booth would only be soliciting funds from those attending the bar meetings, and not the public at large, the Code does not make any exception for persons who can be solicited.

The fact that the persons to be solicited in this situation are attorneys, arguably makes this an even more inappropriate area for fund-raising by the judiciary. In Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State & Federal Judges, p. 29, by Steven Lubet, the point is made that, even more than with private citizens, "lawyers or court personnel can be intimidated into contribution by the solicitation of sitting judges." Lubet explains the purpose behind the fund-raising prohibition of Canon 5B(2) as follows:  

            The purpose of this prohibition is to avoid misuse of the judicial office. The rule addresses the dual fears that potential donors either may be intimidated into making contributions when solicited by a judge, or that they may expect future favors in return for their largesse. In either case, the dignity of the judiciary suffers, and, since most charitable organizations can raise funds perfectly well without the involvement of judges, a per se prohibition was deemed appropriate.

As to the nature of the solicitation of funds involved in this case--participation in a dunking booth--Canon 5B(2) has been interpreted as prohibiting judges from performing at fund-raising events. Vol. 7 Judicial Conduct Reporter No. 4, page 8 Winter/ 1986. In accordance with this proposition, a Texas judge was advised not to sing an aria at a fund-raising event. Id., quoting Tex Adv. Op. 41 (1979). According to the commentary in the Conduct Reporter: 

           The policy behind this section of the canon is to assuage the fear that potential donors will feel intimidated into making contributions because the judge might retaliate by ruling against them in lawsuits ... However, Canon 5B(2) has been broadly applied to prohibit a judge's appearance at a telethon, even though the judge would never know the names of those watching. Tex. Adv. Op. 16 (1976).

Similarly, two New York judges were admonished for violating Canons 1. 2. and 5B(2) when they acted as judges in mock court proceedings in their courtrooms to raise funds for the American Heart Association as part of the "Jail Bail for Heart" fund-raising program. In re John G. Turner, Unreported Determination (N.Y. Comm'n March 23. 1987); In re Joseph Harris, Unreported Determination (N.Y. Comm'n Jan. 22. 1988), cited in the publication of the 11th National Conference for Judicial Conduct Organizations (1988). A third New York judge was found to have violated the same Canons when she judged the "Buffalo's Sexiest Baldy Contest," a fund-raising event of the Cystic Fibrosis Foundation.

Participation in a dunking booth, with the proceeds to be used to establish an educational program in the school system. constitutes performing at a fund-raising event. This activity is similar in character to singing, judging mock court proceedings, and judging other contests, where the proceeds raised in this manner are to be donated to a charity or for an educational purpose.

It is the committee's opinion that the Code of Conduct prohibits participation by a judge in fund-raising activities where the funds will benefit any educational or charitable purpose. This prohibition includes participation in a dunking booth at a bar convention or at a midwinter meeting of the bar, where the proceeds would be used to establish drug prevention programs in the schools.