Category Archives: Charitable activity

Promoting and conflating

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Approving a stipulation, the California Commission on Judicial Performance publicly censured a judge for, in addition to other misconduct, using his title, court resources, and a study prepared for his court to promote a non-profit organization he had created; involving individuals whose companies did business with the court in the organization; misleading court employees to induce them to participate in a press conference about the organization’s launch; and “prevaricat[ing]” in discussions with other judges about the organization.  In the Matter of Vlavianos, Decision and order (California Commission on Judicial Performance February 8, 2023).

From 2008 until January 2022, the judge presided over his court’s multi-track DUI program.

In July 2021, the judge formed a non-profit organization—the Association of Comprehensive Collaborative and Equitable Supervision and Services—that would sell the “ACCESS Multi-track Court Model” to collaborative courts.  The organization’s website described it as “a new national non-profit organization that provides education and training for high risk, repeat DUI offenders who do not have high treatment needs.”

The judge promoted ACCESS using his judicial title and court resources.

  • ACCESS issued a press release that used the judge’s title and described him as “Chair of ACCESS and California Superior Court Judge Richard A. Vlavianos.”
  • The ACCESS website prominently featured a photo of the judge in his judicial robe and identified him as a judge of the San Joaquin County Superior Court.
  • The website incorporated content from a consultant’s study of the court’s DUI program that the court had paid for. 
  • The judge induced court employees to attend a press conference about the launch of ACCESS during work hours by telling them it was about the results of the study.
  • The judge discussed ACCESS in a TV interview conducted in his chambers.

In promoting the organization, the judge “conflat[ed]” the court’s multi-track DUI program with the “ACCESS Multi-track Court Model.” 

  • Even though ACCESS was not created until 2021, its website stated that the ACCESS program “has been led by the Honorable Richard A. Vlavianos since 2008” and that “5,200 DUI recidivists have participated in ACCESS since 2008, with 80% completing the program successfully.”
  • The website republished data and graphs from the court study under the ACCESS logo and captioned “ACCESS Multi-track Court Model.”

The chief financial officer of ACCESS was the chief software business officer of a company that sells alcohol monitoring software and hardware to courts and agencies, and the judge sought to have his court contract with that company for case management software services.  Further, at the judge’s recommendation, the court ended its existing contract for drug testing and entered into a new contract with a company whose director of marketing was a member of the ACCESS board.

The court’s other judicial officers and staff did not know about the judge’s involvement with ACCESS until December 2021.  In a meeting held after they learned, “Judge Vlavianos was not forthright with his judicial colleagues” and “initially downplayed his involvement in ACCESS, which he described as simply a training program for judges.”  2 days later, he told the presiding judge that the ACCESS website had been taken down and that he had resigned from the board.  The next day, he was removed from his DUI court assignment and prohibited from contact with staff or attorneys involved in the program.

The other misconduct for which the judge was censured was:  (1) failing to fully apprise criminal defendants of their rights, which coerced the defendants into participating in treatment court; (2) making remarks to defendants that created the appearance of bias, failing to safeguard the constitutional right to counsel for an unrepresented defendant, and threatening a deputy public defender with contempt when she objected; (3) exhibiting poor demeanor toward the district attorney; (4) engaging in ex parte communications about and embroiling himself with 2 parole re-entry court defendants and engaging in an ex parte communication with court staff about a criminal defendant; and (5) discussing a represented defendant’s alleged refusal to participate in a program in good faith and the court’s appropriate response without including defense counsel or the deputy district attorney.

Prestige and partiality

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Reversing the admonition of the State Commission on Judicial Conduct, the Washington Supreme Court held that a judge did not abuse the prestige of his judicial office or violate his duty to be and to appear to be impartial when he allowed a community college to run a bus advertisement with his picture and the statement:  “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” In the Matter of Keenan (Washington Supreme Court February 10, 2022).

The judge grew up in poverty, had been a juvenile defendant, and had dropped out of high school.  At 17, he was working at a fast-food job when he took the GED exam through North Seattle College.  He did very well, and the dean encouraged him to continue his education.  The judge studied for his high school diploma through the College and then began working toward his 2-year degree there, attending classes during the day and working full-time at night as a security guard.  After graduating, he transferred to the University of Washington.  He earned his law degree from Seattle University.  He has a long history of doing pro bono legal work, and he remains involved with North Seattle College.

In July 2019, the judge was asked to appear in a bus ad as part of the College’s student recruitment campaign.  The judge reviewed the code of judicial conduct and advisory opinions but did not ask the judicial ethics committee or the Commission whether the ad violated the rules.  The judge approved the ad, and it ran for 3 weeks.

(1) Concluding that the judge violated Rule 1.3, which prohibits abuse of the prestige of the judicial office to advance the interests of others, the Commission had found that the ad was “aimed at increasing student enrollment which, in turn, would advance the economic interests of the college.”  The Commission found that the judge’s argument that his actions were permitted because the ad would encourage people to go to law school after community college was “too tenuous or strained to be persuasive” and opened “the flood gates to allow judges to promote any activity that could possibly encourage students to attend law school.”

On review, the Court emphasized that the 2011 update to the state code of judicial conduct changed the language in the rule from “lend the prestige of judicial office” to “abuse,” “mirror[ing]” the change in the 2007 American Bar Association Model Code of Judicial Conduct.  The ABA has explained that it changed “lend” to “abuse” because “lend” created “unnecessary confusion” and “the problem that Rule 1.3 seeks to address is more accurately characterized as ‘abuse’ of the office.”  The Court noted that the model code does not define “abuse” but that Black’s Law Dictionary defines it, in part, as “[t]o depart from legal or reasonable use in dealing with (a person or thing); to misuse.”  Based on comments to the code, the Court noted that a judge using judicial letterhead to provide a recommendation letter is not an abuse but that the “classic” examples of Rule 1.3 violations are a judge “alluding to their judicial status to gain favorable treatment in encounters with traffic officials” and “using judicial letterhead to gain an advantage in conducting personal affairs, such as inquiring into automobile registrations or real property assessments.”

To distinguish between unreasonable “abuse” of judicial office and appropriate “use” of judicial office, the Court noted that Canon 3 encourages judges to participate in extrajudicial activities and permits judges to “participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice,” specifically those “sponsored by or undertaken on behalf of public or private not-for-profit educational institutions,” with “no distinction among legal, nonlegal, postgraduate, and undergraduate types of not-for-profit educational institutions.”  The Court also noted that the code permits a judge to allow “an organization to use their title ‘in connection with an event of such an organization or entity, but if the event serves a fundraising purpose, the judge may do so only if the event concerns the law, the legal system, or the administration of justice.’”

Concluding that the judge “did not ‘misuse’ his title or the prestige of his office” in the ad, the Court explained that “while recruitment has an incidental economic benefit, just about anything that a judge would do for a college would incidentally benefit it economically.  This incidental economic benefit is permissible under Canon 3 because a judge’s prestige should be used to encourage education.  Using one’s judicial title for such a purpose does not constitute an abuse.”

Agreeing with the judge that his involvement with a nonprofit community college was related to the administration of justice, the Court stated that “supporting community colleges may be one important way to increase diversity and access to the legal community—certainly an impact that improves the ‘administration of justice.’”  The Court noted that judicial ethics advisory opinions from Washington recognize that judges contribute “to the improvement of justice by helping get ‘the most qualified individuals into the legal profession,’” for example, allowing them to appear in a promotional law school video sent to prospective students.  Concluding that the logic of those opinions “extends further,” the Court explained:

[M]any of “the most qualified individuals” for “the legal profession”—and probably many from marginalized communities—might start at community colleges.  It necessarily follows that a judge may contribute to the improvement of justice by helping get “the most qualified individuals into the legal profession” by promoting the educational opportunities afforded by their own former community college. . . .

The Court also concluded that it was irrelevant that the judge’s statement was in a bus ad.

To be sure, a bus advertisement differs dramatically from a pamphlet mailed to a targeted house, a video sent to targeted prospective students, or to appearances in law school alumni publications—all of which many judges do. . . .  But the difference lies mainly in who, and how many, people these ads and publications reach.  Law school magazines, videos to prospective students, and published books reach a narrow, primarily self-selected, audience; bus ads, like social media postings, reach a broader audience.  The [Commission’s] decision thus ends up punishing judges for communications that have a broad and nondiscriminatory, rather than a narrow and targeted, reach.

(2) Concluding that the judge violated Rule 1.2, which requires a judge to be impartial and to avoid the appearance of impropriety, the Commission had found that a reasonable person could read the ad to “suggest that Judge Keenan has a leaning, or preference, and would advocate accordingly for marginalized communities” and that a person who was not from a “marginalized community” could “reasonably be concerned about being treated unfairly by Judge Keenan.”

Disagreeing with that finding, the Court held that “an objective, reasonable person would not infer” from the judge’s description of his reasons for attending law school that he lacks ‘an open mind in considering issues that may come before [him]’ as a judge.”  The Court noted that “all judges decide to join the legal profession for one reason or another, and stating why you got into the law does not mean that you cannot rule impartially in a case.”

The Court noted the Commission’s concern about the use of “advocate” in the ad and acknowledged that “a judge should not advocate for particular partisan causes.”  But, the Court explained, “a judge certainly should advocate for and ‘promote’ access to justice and improvements to the administration of justice. . . .  Thus, the word ‘advocate’ alone does not show inappropriate partisanship.  If anything, stating that you got into law to advocate for communities that have been ‘marginalized’ from the benefits of the justice system might counter widespread perceptions that the law has historically treated marginalized members of our community unfairly.”  The Court concluded that, “viewed in context,” the judge’s statement in the ad “impartially promotes respect for marginalized communities” and “is best interpreted as a comment on a general justice system issue, not as a comment on how he would rule in a case.”

“Secondary judicial system for select defendants”

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Based on their agreements to resign and never to seek judicial office, the West Virginia Judicial Investigation Commission publicly admonished two former magistrates for dismissing criminal charges in exchange for donations to a charitable organization pursuant to motions from the prosecution.  Public Admonishment of Nutter (West Virginia Judicial Investigation Commission August 27, 2021); Public Admonishment of Taylor (West Virginia Judicial Investigation Commission August 27, 2021).  The Commission found that, by dismissing criminal charges in exchange for donations to a charitable organization, the magistrates “created the appearance of selling justice” in their courtrooms and that, by going along with the prosecutor’s office, the magistrates “created a secondary judicial system for select defendants.”

The St. Marys Police Department had a non-profit program called “Slow Down for the Holidays” to raise money to provide Christmas presents for children in the community.  During the final 2 or 3 months of the year, during a traffic stop, police had the option of giving a driver a flyer that indicated that the driver could face their criminal charges or make a $50 donation to the program.  If the driver chose the donation, the municipal court would dismiss the citation, and the driver would avoid criminal fines, court costs, and a conviction on their record.  All of the citations were for non-serious traffic offenses such as speeding, and none involved jail time.  In 2018, the Pleasants County Sheriff’s Office joined the “Slow Down for the Holidays” program.

Also in 2018, the county prosecutor’s office decided to offer a few defendants charged with misdemeanors the opportunity to donate to the program in exchange for dismissal of their charges.  During the holiday months in 2018, 2019, and 2020, the prosecutor’s office offered at least 19 defendants the opportunity to avoid the consequences of their charges by donating to the program.  The cases involved more serious charges than traffic charges, and the defendants were required to donate $200 to $5,000, not $50 a charge.  Upon proof of a donation, the prosecutor’s office would make a motion to dismiss the charges to one the magistrates, and the magistrates would grant the motion.

The 2 magistrates dismissed 17 cases in total in which donations had been made to the program.  Of those, 12 involved criminal charges that would have resulted in an enhanced penalty if the defendant had been charged again; by dismissing the charges, the magistrates had ensured that the defendants would not receive a judgment of guilty that could later have been used to enhance criminal penalties.  Similarly, in 16 of the cases, the dismissals allowed the defendants to avoid receiving points on their license or a possible license suspension.

The magistrates were aware that there were no legal defects in the cases and that the only reason for the motions to dismiss was that the defendants had donated money to the police department charity.  As the magistrates admitted, no law, court rule, or caselaw allowed them to dismiss cases because the defendants donated to charity; they had not investigated whether there was any authority for the dismissals or asked for advice from other magistrates, judges, or the Commission, but had relied on the representations of the prosecutor’s office. 

Truancy

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In a recent advisory opinion, the North Carolina Judicial Standards Commission provided guidance about judges being involved in school-sponsored truancy intervention programs.  North Carolina Advisory Opinion 2020-1.

The opinion stated that judges should not “meet individually with parents, school counselors, prosecutors and others to evaluate the facts and develop strategies to address” a specific family’s truancy issues.  The opinion also advised that judges should not “’presid[e]’ over informal truancy dockets in schools or courtrooms or otherwise appear[] as a ‘judge’ when meeting with families outside of official court proceedings.”  The Commission explained that “such personal involvement with a particular case would require disqualification” if that case “eventually resulted in a juvenile, criminal or other proceeding involving those family members.”

The Commission also cautioned that “judges should not create the appearance that they are acting with official authority in participating in truancy intervention programs established in local school districts.”  That concern prohibited judges, the opinion stated, from “‘presiding’ over school-sponsored truancy meetings while wearing a judicial robe” and from “issuing a ‘summons’ or other notice on behalf of the program to direct families to appear at truancy mediations, hearings or meetings.”

Emphasizing that it was not suggesting that truancy intervention programs did not benefit the community, the opinion noted that judges could volunteer “to educate parents and students in group settings about court processes and procedures involved in truancy matters” and could serve as an advisor for such programs generally.

Similarly, the New Mexico Advisory Committee on the Code of Judicial Conduct stated that a judge could be an advisor to the school district about its truancy court and could “speak to groups at a location such as a school to provide general information about the compulsory school attendance laws and the manner in which the cases are addressed when they come before the court.”  New Mexico Advisory Opinion 2013-5. However, the opinion advised that a judge may not participate as a judge in a school district’s truancy court program, either in the courtroom in robes or outside the courthouse without a robe.  The opinion described the program at issue.

A group of students, their parents, and the school principals appear before a judge.  The judge advises the parents about the compulsory school attendance laws, including the potential for the school district to file a criminal complaint, and tells the students about the importance of education.  Then, each school principal comes forward with individual students and the student’s parents and reports to the judge the facts concerning the student’s truancy.  Based upon the principal’s recommendation, the judge will inform the student and parents whether the principal will continue to monitor the student’s attendance and whether the student and parents will need to return to the truancy court.

The committee noted that, although there would be no actual court filings, the courtroom setting and judicial robes were designed to establish the judge’s authority.  It emphasized that “actual behavior and consequences” were involved and the program was “not a mock trial or moot court proceeding conducted for educational purpose.”  Further, even if the program were held outside of courthouse and the judge did not appear in a robe, the committee considered the judge’s participation to be coercive given the judge’s position in the community.  Accord New Mexico Advisory Opinion 2018-5 (a judge may not participate in a school’s truancy intervention court in his courtroom even if the judge does not wear a robe and is not the only person making determinations).

See also New York Advisory Opinion 2012-18 (a family court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children, meet with caseworkers, educators, attorneys, and parents to advise them about rights and services that may be available, and collaborate with them on ways to improve the children’s school attendance even if the judge will not preside in any of the selected cases); New York Advisory Opinion 2013-13 (a judge may participate in a focus group of key leaders in the community convened by a school district’s consultant as part of an analysis of local truancy and possible solutions); Pennsylvania Informal Advisory Opinion 5/4b/10 (a judge cannot appear in a photograph as part of a truancy poster project); West Virginia Advisory Opinion 2018-19 (a judge may participate in a state agency video to explain the importance of successful truancy measures for juveniles and be identified as a judge and wear a robe during filming).

Organizations and advocacy

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The tension between the desire of judges to remain engaged in their communities and their responsibility to be and appear to be impartial and apolitical has been illustrated recently in a judicial discipline decision and several judicial ethics advisory opinions regarding service on the boards of non-profit organizations.

A Utah judge was reprimanded for serving as president of a national non-profit organization dedicated to the social, political, and economic well-being of Asian Pacific Americans, called OCA-Asian Pacific American Advocates.  In re Kwan, Order (Utah Supreme Court November 4, 2016).  The Judicial Conduct Commission’s reprimand (which was based on a stipulation and which was approved by the Utah Supreme Court) noted that the judge had not intended to violate the code of judicial conduct but wanted to aid and lift up the Asian Pacific American community, fight injustice, discrimination, and inequality, and build understanding and unity.

After receiving a complaint about the judge’s service as president of OCA-Asian Pacific American Advocates, the Utah Commission requested an opinion from the Ethics Advisory Committee, and the committee, without naming the specific organization, stated that a judge may not serve as president of an organization dedicated to advancing the social, political, and economic well-being of a specific ethnic group.  Utah Informal Opinion 2015-1.  The Commission then notified the judge, and the judge immediately resigned as OCA president.  In response to the judge’s subsequent request for additional guidance, the committee issued a second opinion but did not change its advice.  Utah Informal Opinion 2016-2.

As described in articles and press releases that included the judge’s name and judicial title, during the judge’s term, the organization had applauded the introduction of legislation regarding voters’ rights, human trafficking, and broadband; called for a national dialogue on responsible gun ownership and for the end of deporting undocumented immigrants; extended sympathy to the families of mass murder victims; filed an amicus brief in a federal case; commended the U.S. Supreme Court for decisions in several cases; and criticized statements by presidential candidates.  Because a judge may not personally express his views on legislation and political issues that are not directly connected to the judicial system, may not publicly comment about a pending case, and may not publicly oppose a political candidate, the committee stated that a judge may not serve as a president of an organization that engages in those activities.  The committee noted that it did not believe a judge could serve as president of an organization without being linked with its positions and activities in its press releases and articles.  The committee explained that, “[e]ven though judges may serve as officers in civic organizations, judges must be particularly cautious when those organizations are advocacy groups.  A group that advertises itself as dedicated to advancing the political well-being of its members should automatically raise concerns for a judge.”  Further, the committee advised, although a judge may be the president of an organization that engages in fund-raising, a judge may not participate in the fund-raising and, therefore, may not be mentioned in a press release announcing a fund-raiser.

In the follow-up opinion in response to the judge’s questions, the committee stated that its advice applied even if the organization did not use the judge’s title because a “judge cannot avoid the limitations imposed by the Code of Judicial Conduct by acting or purporting to act as a private individual or when serving as a representative of an organization.”  Further, the committee stated it did not matter if the judge held an office other than president because “[t]he public could reasonably perceive all office holders as responsible for, or at least supporting, the statements and policies of the organization.”

The committee also disagreed with the judge’s argument that the organization’s statements fell within the code exception that allows a judge to speak on issues that personally affect the judge.  Stating “this provision must be read narrowly,” the committee explained that, “[i]n a broad sense, many pieces of legislation have the potential to affect a judge’s interests” but the interest or the impact must be “significant and direct” to permit public statements by the judge.

The committee also stated that public criticism of a political candidate fell within the ban on publicly opposing a candidate because the prohibition would be of “little value” if it were limited to express endorsements or opposition.  It explained:

When an individual is running for public office, a judge’s public comments either praising or criticizing that individual can be reasonably viewed as support or opposition.  A judge should frankly avoid any public statements about candidates for office, whether made on the bench, as a private citizen, or as an officer of an organization.

Finally, the committee stated, the prohibition on participating in fund-raising included publicly thanking individuals for attending a fund-raising event, which may create the appearance that the judge participated in the fund-raising efforts.  The opinion noted, “[t]here is no reason for a judge to publicly thank individuals when certainly there are others in the organization who may act in that capacity.”

* * *
The Connecticut Committee on Judicial Ethics advised that a judge could – as long as she complied with numerous conditions — serve on the board of directors of a national ethnic bar association as well as donate money to and join the organization.  Connecticut Informal Advisory Opinion 2016-16.  The conditions on the judge’s affiliation were that she:

  • May not associate herself with the organization’s positions on matters of public controversy;
  • May not use her judicial title in connection with her membership or donations and should obtain adequate assurances that the organization will not publicize or use her judicial title for any purpose;
  • Should carefully consider whether specific programs or activities of the organization may undermine confidence in her independence, integrity, and impartiality;
  • Should regularly re-examine the activities and rules of the organization to determine whether to continue her relationship;
  • Should disqualify herself from any litigation in which the organization (including a state chapter) is a party or is representing a party; and
  • Should disclose her affiliation and consider whether recusal is necessary if an issue comes before her that involves a matter on which the organization has taken a public position by litigation or lobbying, for example.

With the same caveats, the committee in the same opinion gave permission for a judge to donate money to and be a member of the American Civil Liberties Union but concluded that a judge may not serve on the board of the ACLU.  The committee noted that “many of the issues championed by the ACLU through lobbying and litigation are controversial and of a high public profile.”  It also noted that the ACLU was not apparently a party to any pending civil cases in the superior court, although its state chapter had appeared as counsel or amicus in approximately 8 cases before the Connecticut Supreme Court within the past 5 years.

The committee explained that the ACLU has attributes of both an organization “concerned with the law, the legal system, or the administration of justice” in which judges have some latitude to participate and a “political organization” in which their participation is restricted.  Thus, the committee concluded, a judge may join the ACLU and donate to the organization but should not serve as an officer, on the board of directors, or in any other leadership position.  Its analysis was the same for the Southern Poverty Law Center.

In contrast, the Connecticut committee stated, a judge could not even donate or belong to the National Organization for Women, much less be a board member.  It noted that, according to NOW’s web-site, the organization is not affiliated with any political party and all candidates for office are eligible for NOW’s endorsement.  But it also noted that NOW’s web-site and its affiliated political action committee “appear to be one-sided in their support of one of the major political parties and its candidates, and NOW’s president has been outspoken about the results of the 2016 presidential election.”  (At least with respect to the latter point, however, NOW seems indistinguishable from the ACLU.)  The committee concluded, “[g]iven the clear political bent of NOW and its political action committee, it appears that the Judicial Official’s proposed involvement with NOW would constitute improper political activity” and “could call into question the Judicial Official’s independence, integrity and impartiality . . . .”

Charitable contributions as part of a sentence

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Judicial ethics committees have consistently advised that, absent express legal authority, a judge may not require a contribution to a charity as part of a sentence.   In addition, judicial conduct commissions have disciplined judges for requiring a charitable contribution as part of a criminal disposition.

The rationale for the rule is that a judge may not personally solicit contributions to charitable organizations or use the prestige or power of the judicial office to do so and incorporating a charitable contribution into a sentence is in effect solicitation of funds.  The prohibition applies even if the judge is simply approving a plea bargain or allows the defendant to choose where the donation goes.  Further, it applies when the contribution is in exchange for dismissal or withholding adjudication or in lieu of attorney sanctions or community service

An article on charitable contributions as part sentencing was published in the winter 2000 issue of the Judicial Conduct Reporter and will be up-dated in the next issue.  You can sign up to receive notice when a new issue is available at http://www.ncsc.org/newsletters.  In the meantime, below are summaries of advisory opinions and cases issued since the original article.

  • When a statute authorizes a judge to approve a deferred sentence agreement in which the defendant agrees to pay a sum certain to a designated charity, a judge may approve such an agreement as long as the judge does not choose or suggest the charity. Colorado Advisory Opinion 2008-7 .
  • A judge may not order that attorneys or litigants pay a fine for civil contempt or other sanctionable conduct to a specific charity or to a charity or worthy cause selected by the person being sanctioned. Hawaii Advisory Opinion 2001-1.
  • A judge may not permit a defendant who has been convicted of a misdemeanor to make a contribution to a charity of the defendant’s choice in lieu of imposing the usual fine of $300. Kansas Advisory Opinion JE-108 (2001).
  • Pursuant to the recommendation of the Judicial Tenure Commission to which the judge consented, the Michigan Supreme Court censured and suspended for 30 days a magistrate who advised defendants to purchase tickets to a charitable event in exchange for having their tickets dismissed. In re Shannon, 637 N.W.2d 503 (Michigan 2002).
  • A judge may not accept a plea bargain if the judge knows that a precondition to the recommendation is payment of money to a specified charity, the county treasury, or a county crime reduction fund. Missouri Advisory Opinion 176 (2000).
  • A judge may not require donations to a county school fund in lieu of a fine even as a condition of probation or part of a plea bargain. Missouri Advisory Opinion 180 (2002).
  • A judge may not as part of a criminal sentence order a convicted defendant to make a charitable contribution or approve a plea bargain agreement between the prosecutor and the defendant that includes the defendant’s agreement to make a charitable contribution even if the judge does not select the charity or the amount of the contribution. Nevada Advisory Opinion 2000-3 .
  • A judge may approve a plea bargain agreement that includes the defendant’s donation of money to the county STOP DWI program as long as the judge determines that the plea bargain is legally appropriate and ethical under the code of professional responsibility. New York Advisory Opinion 2008-67 .
  • A judicial officer may not approve a stipulated order of continuance in which the city prosecutor and defendant agree to case dispositions in which money is to be paid to the city that is not in accord with statutory provisions. Washington Advisory Opinion 2004-5.

Encouraging pro bono service

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In the fall 2004 issue of the Judicial Conduct Reporter, an article explained that, as a corollary to the prohibition on judges’ personally participating in the solicitation of funds for a charitable organization and a reflection of the adage that “time is money,” judicial ethics committees have advised that a judge may not solicit attorneys to provide pro bono legal services to individuals, including signing a letter distributed to the bar.

In 2007, the American Bar Association Model Code of Judicial Conduct was revised to provide, in Rule 3.7(B), that “a judge may encourage lawyers to provide pro bono publico legal services.”  Comment 5 explains:

In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office.  Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

Recently, in a formal opinion, the ABA Standing Committee on Ethics and Professional Responsibility advised that a state supreme court justice may sign a letter on the justice’s stationery that is duplicated and mailed by the unified state bar association encouraging all lawyers in the state to provide pro bono legal services to persons in need and to contact the bar association for information about volunteer opportunities.  ABA Formal Advisory Opinion 470 (2015).  The committee noted that “signing a letter encouraging lawyers to perform pro bono services is not one of the specific activities listed as permissible in Comment [5]” but “is consistent with the encouragement listed in Comment [5].”

The committee explained that the proposed letter would not be soliciting a contribution but “encouraging lawyers to meet their professional responsibility to provide pro bono legal services pursuant to Model Rule of Professional Conduct 6.1,” stating “a contradictory reading [of the code] would be unreasonable.”  In approving judicial involvement, the committee emphasized that:

  • The proposed letter was encouraging lawyers to perform pro bono service in general without identifying a specific agency or program.
  • The proposed letter would not have a personal salutation and would be sent to every lawyer in the state.
  • Use of court resources would be incidental because the bar would duplicate and mail the letter so only one piece of the justice’s stationery would be used.
  • The justice will not know any lawyer’s response to the letter because the state bar, the supreme court, and the justice would not do any “follow-up monitoring.”

“Forsee[ing] facts under which a letter from a judge urging a lawyer to perform pro bono legal services could be viewed as coercive by a reasonable person,” the committee identified factors a judge should weigh before sending a letter, including the number of lawyers who will receive the letter, the number of judges in the jurisdiction, and the tone of the letter.  “A letter in which the justice speaks in aspirational and encouraging language will have a much different impact,” the committee advised, “than a letter that features dictatorial, condescending language.”

Accord Alabama Advisory Opinion 2004-847 (a judge may write a letter to members of a local bar association encouraging them to participate in the state bar’s volunteer lawyers program); Florida Advisory Opinion 2010-31 (a chief judge may send a letter soliciting lawyers’ participation in a Florida Bar campaign by donating pro bono legal services or making a monetary donation to a legal aid organization); Kentucky Advisory Opinion JE-107 (2005) (a judge may not write a personal letter urging members of the bar to donate time to a particular pro bono organization but may write a generic letter to the bar at large that does not refer to a specific organization); Texas Advisory Opinion 258 (2000) (a board of judges may send out a letter signed by all of the judges to all members of the local bar association asking them to consider donating time and services to a volunteer lawyer project’s pro bono legal clinic).

See also Alaska Advisory Opinion 2004-1 (a judge may make general appeals to participate in pro bono efforts, including referring to a list of available pro bono programs; may participate in a workshop or CLE seminar available at no cost to attorneys who undertake pro bono cases; may write articles for bar or general circulation media encouraging attorneys to participate in pro bono work; and may publicly acknowledge the pro bono activity of particular attorneys; a judge may not send letters of congratulation directly to attorneys or host a social event for attorneys who have participated in pro bono activity); Colorado Advisory Opinion 2006-2 (a judge may encourage attorneys to perform pro bono services and act as an advisor to the local legal service’s call-a-lawyer program); Florida Advisory Opinion 2012-26 (a judge may solicit attorneys to volunteer as pro bono attorneys ad litem for children in dependency cases at a local bar associations’ regular lunch meetings or request local bar associations to convene a special meeting for that purpose); Maryland Advisory Opinion Request 2013-29 (judges may solicit attorneys to represent indigent parties pro bono by writing to attorneys individually, by speaking publicly to bar gatherings, or by placing advertisements in bar publications.); Michigan Advisory Opinion J-7 (1998) (a judge may “write, speak, lecture, and otherwise participate in a wide range of activities designed to promote and encourage attorneys to engage in . . . pro bono representation”); New York Advisory Opinion 2009-68 (a judge who serves on a court pro bono committee may sign formal or handwritten letters of appreciation on behalf of the committee, using court or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges).

Participating in charitable fund-raising

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In the recently published summer issue of the Judicial Conduct Reporter, there is an article on participating in charitable fund-raising events (a follow-up to the article in the spring issue on “defining ‘charitable fund-raising event’”). The article reveals some consensus but also some splits among the state advisory committees and even over time on what types of participation are permissible and which are over-the-line for judges.

There may be a more lenient attitude developing toward judicial participation in fund-raising, particularly when a judge’s status as a judge is downplayed and his or her status as a member of the community is emphasized. Thus, a judge can solicit contributions from family members, since it is the family relationship, not the judicial office that is important there, and may under most circumstances be just one of the members of a band playing at an event or one of waiters at a dinner or one of the walkers in a walk-athon. But a judge cannot act as a celebrity waiter or run a 100-yard-dash in her robe or participate in a “dunk-the-judge” booth to raise funds.

So far no advisory committee has issued a formal, public opinion on whether judges may participate in the viral ice bucket challenge that has raised so much money for ALS research.  But the principles announced in previous opinions should be transferable.