COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 89
Judges' Acceptance of Honors Funded Through Voluntary Contributions.
The Committee has often been asked to advise on the propriety of
a judge's consenting to or participating in a project to raise funds for
scholarships and similar beneficial enterprises to be named in honor of
the judge. In the past similar projects to honor judges involved endowment
of professorships or research chairs, or construction of practice courtrooms,
libraries and their like. In Advisory Opinion No. 46, the Committee discussed
the considerations bearing on judges' acceptance of honors and awards,
while this opinion addresses the considerations relating to accompanying
fund-raising efforts.
Canons 4 and 5 of the Code of Conduct for United States Judges speak
to the judge's role in enterprises that raise or spend funds for good causes.
Canon 4C says:
A judge may serve as a member, officer, or director of an organization
or governmental agency devoted to the improvement of the law, the legal
system, or the administration of justice. A judge may assist such an organization
in planning fund-raising activities and may participate in the management
and investment of funds, but should not personally participate in public
fund-raising activities. A judge may make recommendations to public and
private fund-granting agencies on projects and programs concerning the
law, the legal system, and the administration of justice. A judge may solicit
funds from other judges over whom the judge does not exercise supervisory
or appellate authority. A judge shall not personally participate in membership
solicitation if the solicitation might reasonably be perceived as coercive
or is essentially a fund-raising mechanism.
Canon 5B says:
Civic and Charitable Activities. A judge may participate
in civic and charitable activities that do not reflect adversely upon the
judge's 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:
(1) A judge should not serve if it is likely that the organization
will be engaged in proceedings that would ordinarily come before the judge
or will be regularly engaged in adversary proceedings in any court.
(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 the judge
may be listed as an officer, director, or trustee of such an organization.
A judge should not personally participate in membership solicitation if
the solicitation might reasonably be perceived as coercive or is essentially
a fund-raising mechanism.
(3) A judge should not give investment advice to such an organization,
but may serve on its board of directors or trustees even though it has
the responsibility for approving investment decisions.
Canon 4 permits a judge slightly greater latitude to participate in
fund-raising for good causes related to the law. Canon 5 expressly states
that the judge should not "use or permit the use of the prestige of the
judicial office," whereas Canon 4 does not contain that language. One reason
for the difference between Canon 4 and Canon 5 activities is simply that
many Canon 4 activities are dependent on participation by judges in order
to be fully effective. But the apparent differences between Canon 4 and
Canon 5 in this respect should not be overemphasized. After all, the general
Canon 2 prohibition against lending prestige of office clearly applies
to all of a judge's activities including those under Canon 4C. This is
evident from the Commentary to Canon 4C where it is said: "A judge may
attend fund-raising activities of a law-related organization although the
judge may not be a speaker, guest of honor, or featured on the program
of such an event."
In recent years the Committee has considered several proposals to
raise funds for projects to honor a judge. Typically, but not exclusively,
the former law clerks of the judge come together to establish a scholarship
named after the judge. The clerks may seek funds from lawyers outside their
ranks. Our consideration of these matters has led us to conclude that the
controlling principle is not to be found so much in Canons 4 and 5, but
rather in Canon 2. Canons 4 and 5 surely delimit the types of organizations
with which a judge may be associated, in an honorary capacity or otherwise,
but the degree of the judge's involvement in an honorary project involving
fund-raising is controlled by Canon 2's prohibition against lending prestige
of judicial office to advance private interests -- eleemosynary or otherwise.
Examined in this light, we recognize that scholarships, libraries,
courtrooms, reading rooms, and the like are named after judges and funded
through voluntary contributions with some regularity without hint of scandal
or public disapproval. While there are concerns about using the prestige
of the judicial office, we believe these concerns would be offset -- overbalanced
-- by the fact that the judge neither (a) initiates nor (b) encourages,
nor (c) solicits funds, nor (d) knows who gave money or even who was asked
to give money. Our opinion that a judge may accept an honor if the judge
is distanced from the process of initiating, developing and financing the
honor is not dependent on whether the honor is one associated with a law-related
institution or some other charitable or educational institution, not related
to the law. Judges have distinguished themselves as practitioners or patrons
of various arts and sciences. A judge may legitimately receive recognition
for a life's effort in realms other than the law.
A judge may therefore accept an honor, such as a scholarship or
reading room or professorship named after the judge, that is funded through
voluntary contributions if (1) the honor is associated with an organization
or institution in which the judge could participate consistent with the
provisions of Canons 4 and 5, and (2) the judge neither initiates nor participates
in the conception or completion of the fund-raising project, and (3) the
judge makes a reasonable effort to remain unaware of the identity of those
who fund the project. A senior judge who no longer hears cases need not
be shielded from learning the identity of contributors after contributions
have been made.
July 8, 1994
Revised January 16, 1998