May a judge donate her artwork to a State Bar section’s silent auction for a law school scholarship?

Plain-English summary

The Women’s Section of the Alabama State Bar planned a silent auction at the Bar’s annual meeting to fund a scholarship for a female Alabama resident attending an Alabama law school. A circuit judge asked whether she could donate artwork she had made. The Commission permits the tangible donation under Canon 4C on the narrow stated facts.

The Commission distinguishes assistance with a law-related organization’s fundraising from direct, personal solicitation. Its analysis relies on a silent auction of about 120 items, at least 300 attendees, numbered bidders, and the distance those arrangements put between the judge and bidders. An item requiring personal interaction with the winning bidder would create a different solicitation concern.

The opinion says the judge’s title should not promote the donation or auction, and her artwork should not be singled out in promotional material. The judge must also consider interference with judicial duties, impartiality, the beneficiary, and the dignity of judicial office. The Commission leaves open a possible recusal issue if the judge knows a lawyer appearing before her made an exorbitant bid.

In practice

The opinion permits this tangible artwork donation under the described silent-auction conditions. It distinguishes a live local-bar auction and an auction for a non-law-related organization, neither of which it resolves.

Common questions

Q: May the judge donate an experience with the winning bidder?

A: No. The Commission says an item requiring personal interaction could amount to direct or personal solicitation.

Q: May the auction use the judge’s title to promote her artwork?

A: No. The opinion says her judicial title should not be used and her artwork should not be singled out.

Q: Could an auction bid affect a later case?

A: Possibly. The opinion describes a known, exorbitant bid by counsel as a circumstance requiring a recusal inquiry and disclosure.

Background and rules framework

Canon 4C governs fundraising assistance for organizations devoted to improving the law, legal system, or administration of justice. The opinion also applies Canons 1 and 2 on conduct and appearance, Canon 3C on disqualification, and Canon 5A on the dignity of artistic activity.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2, 3C, 4, 4C, 5A, and 5B

Other opinions cited:

• Alabama Advisory Opinion 07-878, direct solicitation for court-program supplies
• Alabama Advisory Opinion 00-768, solicitation for a legal aid program
• Alabama Advisory Opinion 04-846, disqualification after a large court-program contribution

See also

• AL Judicial Ethics Op. 09-900: Auctioneer for a Political Club Fundraiser
• AL Judicial Ethics Op. 09-901: Recusal When Counsel Is a Co-Defendant

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 09-899

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: June 19, 2009 ADVISORY OPINION 09-899
QUASI-JUDICIAL ACTIVITY: CIRCUIT
JUDGE’S DONATION OF ITEM FOR
STATEBARSECTION’SSILENTAUCTION
TO RAISE FUNDS FOR LAW SCHOOL
SCHOLARSHIP
ISSUE
May a circuit judge, as a quasi-judicial activity
under Canon 4C, donate an item, including her
signed artwork, for a silent auction sponsored by
the Women’s Section of the Alabama State Bar
Association at the State Bar’s annual meeting to
raise funds for a scholarship awarded to a female
Alabama resident attending an Alabama law
school? Answer: Yes, if the judge’s participation
complies with other canons and the judge’s title is
not used in the promotion of the item or the
auction.
FACTS
The Alabama State Bar Association Women’s
Section and the State Bar sponsor a silent auction
at the State Bar’s annual meeting. All proceeds
raised by the Women’s Section are donated to a
scholarship fund for a scholarship awarded to a
female Alabama resident attending an Alabama
law school. The auction usually presents
approximately 120 items for bid; at least 300
people attend; and each bidder is identified only
by an assigned number. The judge wishes to
donate artwork created by her.
DISCUSSION
A judge’s participation in activities of an
organization devoted to the improvement of the
law, the legal system, or the administration of
justice,i.e., “quasi-judicial”activities, isgoverned
by Canon 4. That canon provides, in part, that a
judge “may assist such an organization in raising
funds” if (1) such action does not interfere with
the proper performance of her judicial duties, and
(2) if in doing do, she does not cast doubt on her
capacity to decide impartially any issue that may
come before her.
The parameters of “assisting” in fundraising are
suggested by the Reporter’s Notes for the 1972
Model Code of Judicial Conduct:
[Canon 4C] authorizes a judge to assist in
fundraising for Canon 4 organizations but
not totheextentof personallyparticipating
in public fundraising activities. This
distinction is primarily a matter of form,
but the Committee felt it sufficiently
insulates the judge fromthe donors and the
donors from the judge, thereby reducing
the possible appearance of impropriety or
lack of impartiality implicit in fundraising
by judges.
E. Wayne Thode, Reporter’s Notes to the Code of
Judicial Conduct 77 (1973). Given the canons’
directives for a judge to avoid the appearance of
impropriety, Canon 2, and to participate in
establishing, maintaining, and enforcing high
standards of conduct, Canon 1, a judge’s
participation in fundraising activities should be
evaluated by an objective, reasonable person
standard.
This Commission’s advisory opinions observe the
prohibition against a judge’s direct and personal
solicitation of donations for any quasi-judicial
activity. See Advisory Opinion 07-878 (direct
solicitation of local businesses for start-up supplies
to establish a “litter squad” as an alternative
punishment to incarceration is prohibited). See
also Advisory Opinions 00-768 (letter to the local
Bar members for support of the local Legal Aid
program is prohibited, even if the judge does not
use his judicial title or judicial letterhead, for such
would create a question as to his impartiality); 97-
682 (direct solicitation of donations of computer
hardware, software, and training for testing of new
technologies for use in the courtroom and case
management is prohibited).
ADVISORY OPINION 09-899
Page 2
In considering this prohibition against direct and
personal fundraising, a judge should assess not
only her conduct, but the nature of the item she
selects to donate for auction. A judge may not
donate an “item” that would entail personal
interaction between the judge and the winning
bidder. See, e.g., New Mexico Advisory Opinion
08-04 (race-car drivinglessons and a performance
by the judge’s band); New York Advisory
Opinion 99-45 (sitting with the judge at the bench
during a court session and dining with him);
Washington Advisory Opinion 95-06 (dinner in
the judge’s home). Such a donation could be
1
reasonably construed as a direct or personal
solicitation. See, e.g., Arizona Advisory Opinion
94-04 (lunch); Texas Advisory Opinion 205 (a
golf game). Cf. Advisory Opinion 96-596 (a
judge is discouraged under Canon 5B(2) from
hosting a charity fundraising dinner in his home).
As a direct solicitation, such service donated for
auction would increase the perception of coercion
and/or an opportunity to curry the judge’s favor,
even to the extent of bidders’ competing to
develop a relationship with the judge. See New
Mexico Advisory Opinion 08-04.
Under the facts presented, the judge proposes to
donate a tangible item. Thus, the judge should
determine whether donating a tangible item for a
State Bar section’s silent auction at the State Bar’s
annual meeting would evoke a reasonable,
objective appearance of a direct or personal
solicitation of a contribution. We conclude that,
under the narrow circumstances presented, it
would not. Rather, such donation falls within the
permissible activity of “assisting” the fundraising
efforts of a section of the State Bar. See, e.g.,
Washington Advisory Opinion 06-01 (donating a
_______
Although these advisory opinions address
1
extra-judicial activities, rather than quasi-judicial
activities,eachrespectivejurisdiction’sapplicable
provisions under which the activity is deemed
prohibited include a provision prohibiting
personal, direct solicitation.
signed print of a photograph taken by the judge for
a silent auction).
Here, the circumstances would tend to insulate the
judge from the bidders and the bidders from the
judge, i.e, the persons solicited by the State Bar
section would not feel obligated to bid on the
judge’s donated item because of her position of
influence or authority, and the bidders would not
expect future favors for bidding on the item. See
Jeffrey M. Shaman, Steven Lubet & James J. Alfini,
Judicial Conduct and Ethics § 9.04A (4 ed. 2007).
th
See also Advisory Opinion 00-768. Because the
donated item would be auctioned silently and the
bidders identified only bynumbers, the judge would
most likely not know the identity of the bidders.
Furthermore, the auction attendees would be the
State Bar members and their guests at the State
Bar’s annual meeting, i.e., most attendees would not
ordinarily come before the circuit judge donating
the item; the bidders would constitute a large group
of prospective donors; the public would not view the
judge’s donation as coercive and abusive of the
prestige of her office because the prospective-donor
class consists of attendees of the State Bar’s annual
meeting, and the judge’s participation would not
promote attendance to the event. See Charles E.
Geyh & W. William Hodes, Reporters’ Notes to the
Code of Judicial Conduct 69-70 (2009) (a judge’s
solicitation of membership in law-related
organizations, such as a bar association, would be
perceived by the public as more natural or more
appropriate than solicitation of membership in
nonlaw-related organizations, such as an opera
society or a charity; only in the latter context does
the judge’s solicitation constitute coercion and an
abuse of the prestige of office); id., at 58 (judges
may have greater latitude to engage in activities that
are law-related because it is less likely that extra-
judicial activities will adversely impact the judicial
system if they are conducted, for example, in
connection with a bar association).
The questions remaining are whether the judge may
be identified, in any promotion of the item or the
auction, as the donor-artist and, if so, may she be
identified by her judicial title. The canons
encourage judges to participate in quasi-judicial
ADVISORY OPINION 09-899
Page 3
activities or organizations, Commentary to Canon

4. Obviously, the prestige of the judicial office is
   therefore inherent in a judge’s participation in
   such activities. However, it is more in keeping
   with the Commission’s interpretation and
   application of the canons that the donating judge
   not be identified with her title. But see Geyh,
   supra, at 70 (use of the judge’s title in connection
   with a fundraising event on behalf of a law-related
   organization, under Rule 3.7(A)(4) of the 2007
   Model Code of Judicial Conduct, rather than
   being an abuse of the prestige of judicial office,
   can provide leadership and role-modeling in the
   legal community). In addition, if the donation is
   the judge’s work of art, that item should not be
   singled out in any way in the promotion of the
   auction, e.g., pictured on the cover of the auction
   catalog.
   Of course, as notedabove, in determining whether
   to donate an item, the judge should evaluate
   whether such action interferes with the proper
   performance of her judicial duties, and whether it
   casts doubt on her capacity to decide impartially
   any issue that may come before her. In regard to
   this latter consideration, the beneficiary of the
   fundraising effort is relevant. See, e.g., Advisory
   Opinion 00-768 (fundraising to benefit the local
   Legal Aid program would create a question as to
   the judge’s impartiality). In addition, the judge
   should observe the other requirements of the
   canons, such as the high standards of conduct
   prescribed in Canons 1 and 2. Even for law-
   relatedorganizationsandactivities,ajudgeshould
   consider whether the membership and purposesof
   the organization, or the nature of her participation
   in or association with the organization would
   conflict with her duty to refrain from activities
   that reflect adversely on her independence,
   integrity, and impartiality. Id. Moreover, the
   donated item should befit the dignity of the
   judicial office. See also Canon 5A (a judge may
   engage in the arts if such avocational activity does
   not detract from the dignity of her office or
   interfere with the performance of her judicial
   duties). In addition, the judge’s donated item
   should not give the appearance that she is giving
   her professional endorsement of a commercial
   establishment, e.g., a gift certificate to a restaurant.
   Cf. Advisory Opinion 91-435 (under Canon 5B, in
   volunteering to be a server at a fundraiser where the
   food is donated by restaurants, the judge should not
   allow herself to be placed in a position where it
   appears to the public that she is giving her
   professional endorsement to a particular restaurant
   represented at the fundraiser).
   As a cautionary note, the Commission observes that
   this opinion does not dispense with the judge’s duty
   of addressing the question of disqualification under
   Canon 3C in the rare, but possible circumstances
   making it reasonable to question the impartiality of
   the judge in a case where a party is represented by
   counsel who had bid on her donated item. For
   example, such a situation would be presented if
   counsel for a party had bid an exorbitant amount for
   artwork created by the judge, and the judge knows
   of that bid and the identity of the bidder. Cf.
   Advisory Opinion 04-846 (a judge is disqualified to
   hear a case where one of the parties made large
   contributions for the funding of a court program
   over which the judge presides and the judge knows
   that this entity provided such funding). Of course,
   if the judge is aware of such facts, she should
   disclose those facts to the parties and their attorneys
   and give them an opportunity to supply any
   additional information they believe exists under
   which her impartiality might reasonably be
   questioned.
   The Commission further cautions that a live auction
   before a local bar association would present an
   entirely different scenario than the one presented
   here. Cf. Geyh, supra, at 57 (noting that a judge’s
   coercion–whether by subtle or overt efforts–of
   others to participate in extra-judicial activities
   favored by the judge can be a significant problem in
   communities with onlyone judge, or a small number
   of judges, and a small number of lawyers who must
   maintain good relations with the judiciary). But see
   Washington Advisory Opinion 06-01 (a judge is
   permitted to donate an item to a local bar
   association fundraiser). In addition, this advisory
   opinion does not address the propriety of a state
   ADVISORY OPINION 09-899
   Page 4
   appellate judge’s donation. Finally, the above
   rationale likewise would not necessarily condone
   a judge’s extra-judicial activity of donating an
   item for a silent-auction fundraiser for an
   educational, religious, charitable, fraternal, or
   civic organization or institution under Canon 5B.
   REFERENCES
   Alabama Canons of Judicial Ethics, Canon 1, 2, 3,
   4, 4C, 5, 5A, 5B, and 5B(2), and Commentary to
   Canon 4.
   Alabama Advisory Opinions 07-878, 04-846, 00-
   768, 97-682, 96-596, and 91-435.
   2007 Model Code of Judicial Conduct, Rule
   3.7(A)(4).
   Arizona Advisory Opinion 94-04.
   New Mexico Advisory Opinion 08-04.
   New York Advisory Opinion 99-45.
   Texas Advisory Opinion 205.
   Washington Advisory Opinions 06-01 and 95-06.
   Charles E. Geyh & W. William Hodes, Reporters’
   Notes to the Code of Judicial Conduct 69-70
   (2009).
   Jeffrey M. Shaman, Steven Lubet & James J.
   Alfini, Judicial Conduct and Ethics § 9.04A (4th
   ed. 2007).
   E. Wayne Thode, Reporter’s Notes to the Code of
   Judicial Conduct 77 (1973).

This opinion is advisory only and is based on the
specific facts and questions submitted by the
judge who requested the opinion pursuant to Rule
19 of the Rules of Procedure of the Judicial
Inquiry Commission. For further information, you
may contact the Judicial Inquiry Commission, P. O.
Box 303400, Montgomery, Alabama 36130-3400;
tel.: (334) 242-4089; fax: (334) 353-4043.