Can a judge raise private money or donations to fund a drug court or other problem-solving court?

Plain-English summary

The opinion addresses judges in therapeutic or problem-solving courts (drug, mental-health, and domestic-violence courts) who are asked to raise private funds or in-kind donations needed to operate those courts, since government funds often do not cover the alternative remedies these courts use. The Model Code does not address court fundraising directly, so the opinion applies Rule 3.7, which governs a judge's participation with organizations and entities concerned with the law, as the closest standard.

Under Rule 3.7(A), the opinion explains what a judge may and may not do. The judge may apply for grants and make recommendations to a public or private fund-granting organization for the court's programs under Rule 3.7(A)(5), and may serve as a director of a qualifying not-for-profit under Rule 3.7(A)(6), which carries the ability to have the judge's name appear on the organization's letterhead. But Rule 3.7(A)(2) permits direct solicitation of contributions only from members of the judge's family or from judges over whom the judge has no supervisory or appellate authority. The opinion concludes that the no-solicitation limit "would preclude the judge from being a signatory on a solicitation letter."

The opinion stresses that all of Rule 3.7 is conditioned on compliance with the more general Rule 3.1, so a judge must avoid fundraising that interferes with judicial duties, leads to frequent disqualification, appears to undermine independence, integrity, or impartiality, or appears coercive. It adds that Rule 1.2 (appearance of impropriety) and Rule 1.3 (not abusing the prestige of office) also apply.

The opinion gives particular attention to solicitations directed at lawyers. When a judge learns that lawyers or parties appearing before the judge contributed in response to the judge's solicitation, the judge must apply the appearance-of-impropriety test in Rule 1.2 to decide whether to continue hearing the matter, weighing the size and importance of the contributions. Citing Florida and Ohio authorities, the opinion notes that soliciting incentive gifts from lawyers or firms for a drug court raises concerns about partiality toward donors and potentially burdensome disqualification under Rule 2.11(A).

In practice

Under the Model Code as it stood at the time of the opinion, a judge's ability to fund a problem-solving court runs through Rule 3.7(A). The opinion holds that the judge may pursue grants and recommend funding (3.7(A)(5)) and may serve as a director of a qualifying nonprofit (3.7(A)(6)), but may directly solicit contributions only from family or non-supervised judges (3.7(A)(2)), which bars the judge from signing a solicitation letter. The opinion conditions all of this on Rule 3.1 and on the appearance and prestige limits of Rules 1.2 and 1.3, and flags that contributions from lawyers or parties who appear before the judge can require an appearance-of-impropriety assessment and possible disqualification under Rule 2.11.

Common questions

Q: Can a judge ask businesses or the public to donate money to fund a drug court?

A: Only within narrow limits. The opinion permits grant applications and recommendations to funding organizations, but direct solicitation of contributions is allowed under Rule 3.7(A)(2) only from the judge's family or judges the judge does not supervise.

Q: Can a judge sign a fundraising or solicitation letter for the court?

A: No. The opinion concludes that the Rule 3.7(A)(2) prohibition on soliciting contributions precludes the judge from being a signatory on a solicitation letter.

Q: Can a judge serve on the board of a nonprofit that funds the court?

A: Yes, if it qualifies under Rule 3.7(A)(6), and the judge's name may appear on the organization's letterhead. The opinion still subjects this to Rules 3.1, 1.2, and 1.3.

Q: What if lawyers who appear before the judge donate?

A: The opinion says the judge must apply the Rule 1.2 appearance-of-impropriety test, weighing the size and importance of the contributions, and notes such donations can raise disqualification concerns under Rule 2.11.

Background and rules framework

The opinion interprets the ABA Model Code of Judicial Conduct (adopted February 2007), principally Rule 3.7 (participation with law-related organizations, including the 3.7(A)(2) solicitation limit, 3.7(A)(5) grant recommendations, and 3.7(A)(6) service as a director), Rule 3.1 (extrajudicial activities generally), Rule 1.2 (appearance of impropriety), Rule 1.3 (prestige of office), and Rule 2.11(A) (disqualification). It notes that each jurisdiction's own rules of judicial conduct are controlling.

Citations and references

Rules of Professional Conduct:

• ABA Model Code of Judicial Conduct Rule 3.7 (solicitation, grants, service as director)
• Model Code Rule 3.1 (extrajudicial activities), Rule 1.2 (appearance of impropriety), Rule 1.3 (prestige of office), Rule 2.11(A) (disqualification)

Other opinions cited:

• Florida Sup. Ct. Jud. Eth. Adv. Comm. Op. 2007-05 (2007): drug-court incentive gifts from lawyers
• Arizona Sup. Ct. Jud. Eth. Adv. Comm. Op. 97-01 (1997): letters of support for court-related projects
• Ohio Bd. of Comm'rs on Grievances and Discipline Op. 2004-13 (2004): soliciting donations for a court program

See also

• ABA Formal Op. 470: Judicial Encouragement of Pro Bono Service
• ABA Formal Op. 488: Judges' Social or Close Personal Relationships
• NY State Bar Op. 585: Judge's Membership in a Bar Association With a PAC

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 08-452.pdf