207 Pa. Code §§ 15-3
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:
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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.
207 Pa. Code §§ 15-3