May a domestic-relations judge write a grant recommendation for a nonprofit that supplies court-referred visitation services?

Plain-English summary

A family center provided supervised visitation and monitored exchanges on court referral. A domestic-relations judge asked whether she could recommend the center's services to a public or private grant-making body. The Commission says the visitation program likely concerns administration of justice under Canon 4 and permits a recommendation under stated conditions.

Canon 4C permits recommendations about projects concerning the law, legal system, or administration of justice even if the implementing organization also has other activities. The judge's participation must not interfere with judicial work or cast doubt on impartiality. The opinion excludes direct personal fundraising pressure and says the recipient matters: the judge should avoid lawyers or litigants likely to appear before her, controversial donors, and an organization that supplies court advocacy or commercial interests.

The letter should address a specific potential donor, be used only for the grant request, describe the program's benefits to the judicial system, rely on the judge's personal knowledge, and avoid suggesting special favor or influence.

In practice

The opinion allows the proposed grant letter only within the stated limits on recipient, beneficiary, content, and the judge’s own knowledge of the program.

Common questions

Q: May the judge make a grant recommendation?

A: Yes, if the program concerns the administration of justice and the stated Canon 4C limits are met.

Q: May the judge address lawyers or litigants likely to appear before her?

A: The opinion says she should not make a recommendation to those likely courtroom participants, subject to its stated anonymous-donor exception.

Q: What may the letter say?

A: It may describe the program and its benefits to the judicial system from the judge’s personal knowledge, without implying special favor.

Background and rules framework

The Commission treats the visitation program as likely a Canon 4 quasi-judicial activity and applies Canon 4C, alongside Canons 2A and 2C, to grant recommendations and impartiality.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 2A, 2C, 4, 4C, and 5

Other opinions cited:

• Alabama Advisory Opinions 12-909 and 09-899, advocacy and fundraising limits
• Florida Advisory Opinion 97-11, supervised visitation and administration of justice

See also

• AL Judicial Ethics Op. 12-911: Judge’s Consultation with Legislators
• AL Judicial Ethics Op. 12-913: Mock Trial at a Law Firm’s Private Seminar

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 12-912

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: January 26,2012 ADVISORY OPINION 12-912
QUASI-JUDICIAL ACTIVITY:
RECOMMENDATION TO FUND-GRANTING
AGENCY OF ORGANIZATION'S SERVICES
PROVIDED TO THE COURT
ISSUE
Maya domestic-relationscircuitjudgewrite a letter,
on behalf ofthe local, non-profit family center to a
public orprivate fund-grantingentity, to recommend
the child-visitation services the center provides the
court pursuant to court referrals? Answer: Yes,
under certain conditions.
FACTS
The local family center's mission is to strengthen
families and prevent child abuse and neglect by
providing free education, training, and support to
parents and caregivers. It receives referrals from the
circuit court for supervised visitation for non­
custodial parents and monitored exchange of
children for visitation. The center receives private
foundation grants and governmentgrants, including
those from the Administrative Office of Courts.
There is no indication the centerprovides any court­
advocate services.
DISCUSSION
A judge's participation in activities of an
organization to improve the law, the legal system,
and the administration ofjustice, i.e., quasi-judicial
activities, is governed by Canon 4. Thejudge's first
determination is whether the center's visitation
services are quasi-judicial activities under Canon 4
or extra-judicial activities underCanon 5. It appears
here the visitationprograms are likelyquasi-judicial
activities because such programs assist family court
judges in making visitation decisions in difficult
cases. See Florida Advisory Opinion 97-11
(supervised visitationprogramis closely interrelated
with the administration of justice and the family
court). See also Advisory Opinion 97-678
(rehabilitation opportunities not otherwise available
for juvenile offenders are quasi-judicial activities);
New York Advisory Opinion 88-94 (programs
providing services directly and on a regular basis
to the court concern the administration ofjustice
whereas a programonly tangentiallyorindirectly
involved with court operations cannot
realistically be characterized as concerned with
the administration ofjustice).
Canon 4C provides that a judge, subject to the
proper performance of her judicial duties, may
engage in the following if, in doing so, she does
not cast doubt on her capacity to decide
impartially any issue that may come before her:
• Serve as a member, officer, or director
of an organization or governmental
agency devoted to the law, the legal
system, andthe administrationofjustice.
• Assist such organization in raising funds
and participate in their management and
investment.
• Make recommendations to public and
private fund-granting agencies on
projects and programs concerning the
law, the legal system, and the
administration ofjustice.
The judge's "assistance" is limited to an entity
devoted to the law, the legal system, and the
administration of justice whereas the judge's
"recommendations" may encompass projects
and programs concerning the law, the legal
system, and the administration of justice even
though the entity implementing those projects
and services may also provide non-Canon 4
activities or services. The "recommendations"
provision recognizes that many organizations
seek the advice of judges about funding law­
related projects and that responses to such
requests should not be precluded. E. Wayne
Thode, Reporter's Notes to the [1972] Code of
Judicial Conduct 77 (1973).
In general, participation in fundraising presents
two dangers: (l) the prestige of the judicial
office will be used for the solicitation of funds,
ADVISORY OPINION 12-912
Page 2
and (2) the person solicited will feel obligated to
respond favorably if the judge is in a position of
influence or control. Advisory Opinion 04-891.
See also Canon 2C (a judge should not lend the
prestige of her office to advance the private
interests of others, nor should she conveyor
permit others to convey the impression they are in
a special position to influence her). Thus, ajudge
may be prohibited from direct and personal
solicitation of donations for a quasi-judicial
activity. Compare Advisory Opinion 07-878
(direct solicitation oflocal businesses for start-up
supplies to establish a "litter squad" as an
alternative punishment to incarceration is
prohibited); 97-682 (direct solicitation of
donations of computer hardware, software, and
training for technological needs in the courtroom
andcase managementis prohibited) with Advisory
Opinion 09-899 (under certain conditions, ajudge
may donate an item for the State Bar's silent
auction to raise funds for a law school
scholarship).
The qualified nature of Canon 4C's
language-"assisting" and "recommendations"
ratherthan"requests"--elearlyindicates something
significantly less than actual fundraising is
contemplated by Canon 4. Steve Lubet, When
Good People Do Good Things: The Ethical
Dimension of Judicial Involvement in Victim
Assistance Programs, 69 Judicature 199, 200
(1986). These limitations of not personally
participating in public fundraising activities
sufficientlyinsulatethejudge from thedonors and
the donors from the judge, thereby reducing the
possible appearance of impropriety or lack of
impartiality implicit in fundraising by judges.
Thode, supra, at 77. It is not likely a grant-review
committee will be coerced or intimidated into
awarding funds because a judge supports an
application, and it is equally unlikely a funding
entity would expect a return favor if the project
recommended by the judge is the grant recipient.
See Raymond J. McKoski, Charitable Fund­
Raising by Judges: The Give and Take of the
2007ABA Model Code ofJudicial Conduct, 2008
Mich. St. L. Rev. 769, 826 (2008).
Even if the judge's involvement constitutes only
"assistance" or a "recommendation," Canon 4C
activities are not without limitation. Canon 4C
explicitly provides two requirements: (I) the
judge's involvement must not interfere with the
proper performance ofher judicial duties, and (2)
it must not cast doubt on her capacity to decide
impartially any issue that may come before her.
See also Canon 2A (a judge should conduct
herself at all times in a manner that promotes
public confidence in the impartiality of the
judiciary). In this regard, the recipient of the
judge'srecommendation, i.e., the potential donor,
is relevant because the judge should not make a
recommendation to lawyers or litigants who are
likely to appear before the judge. See Canon 2C
Commentary (a judge should not write a letter of
recommendation to a recipient who is either
engaged in litigation before the judge or likely to
be engaged in proceedings that would ordinarily
come before the judge). An exception to this
prohibition is where the potential donor will not
be identified as having donated. See Advisory
Opinion 04-847 (a judge may write letters to the
local Bar encouraging participation in the State
Bar's Volunteer Lawyers Program where an
attorney participating in the program is not
identified as havingundertaken a particularcase).
The judge should also not provide a
recommendation to a potential donor that is a
controversial entity or one connected with
disputed social or legal issues.
ADVISORY OPINION 12-912
Page 3
The beneficiary ofthe grant request and the use to
which any funding will be made are also relevant.
See Advisory Opinion 09-899. Even for law­
related organizations and activities, ajudge should
considerwhether the membershipand purposes of
the organization, or the nature ofher 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. Thus, the judge
should not support an organization that has
commercial or business profit-making interests
involved. Canon 2C. Neither should the judge
provide a recommendation for an organization
that provides court-advocate services. See
Advisory Opinions 12-909 (a judge may not
participate in a fundraiser for a child-advocacy
center because the center's mission and activities
are advocacy-based and thereby present a
reasonable question ofthe judge's impartiality in
cases before him); 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 hisjudicial title orjudicial letterhead, for such
would create a question as to his impartiality).
See, e.g., Florida Advisory Opinion 2002-09 (a
judge may not write a letter to a grant provider for
funding ofa non-profit organization that provides
advocates to domestic violence victims; the judge
would be indirectly assisting litigants orwitnesses
who would appear in court, and that could affect
the perception ofimpartiality). But see New York
Advisory Opinion 08-112 (the president of the
judges' association may write a letter on the
association's behalf, in support of a grant
application by the AmericanProbation and Parole
Association (APPA) for funds to provide services
that would benefit only crime victims, provided
the district attorney and public defender also do
so, and provided the association's letter sets forth
only the personal knowledge and experience of
association members with the APPA and is
limited to objective facts). Another factor
impacting the appearance of impartiality is
whether the organization is the only entity
providing services not otherwise available in the
service area. The judge should not give the
appearance she is giving her professional
endorsement to a particular competing entity or
organization over another.
Finally, assuming the judge's letter of
recommendation is otherwise appropriate, it must
meet certain requirements:
• The letter should be addressed to a
specificpotential donorbecausethejudge
should access the circumstances for each
specific funding request to determine if
her involvement complies with the
canons. In addition, the letter should not
be used for any purpose other than to
support the grant request.
• The recommendation must supply only
information that describes the program
and the benefits and importance of the
programto thejudicial system. McKoski,
supra, at 827 (such limitation is
recognized by the majority of advisory
committees).
• The recommendation must be based on
the judge's personal knowledge. Such
requirement insures the judge's role is to
provide relevant information and not to
lend the judicial title to the grant
application. /d. at 828.
• The letter should not have any language
that might convey the appearance the
organization is in the judge's special
favor or in any position to exert influence
on the judge. See Canon 2C.
ADVISORY OPINION 12-912
Page 4
REFERENCES
Alabama Canons of Judicial Ethics, Canons 2A,
2C, 4, 4C, and 5.
Commentary, Canon 2C.
Alabama Advisory Opinions 12-909,09-899,07­
878,04-891,04-847,00-768,97-682, and 97-678.
Florida Advisory Opinions 2002-09 and 97-11.
New York Advisory Opinions 08-112 and 88-94.
Steve Lubet, When GoodPeopleDo GoodThings:
The EthicalDimension ofJudicial Involvement in
Victim Assistance Programs, 69 Judicature 199,
200 (1986).
Raymond J. McKoski, Charitable Fund-Raising
by Judges: The Give and Take ofthe 2007 ABA
Model Code ofJudicial Conduct, 2008 Mich. St.
L. Rev. 769, 826 (2008).
E. Wayne Thode, Reporter's Notes to the [1972]
Code ofJudicial 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
18 of the Rules of Procedure of the Judicial
InquiryCommission. Forfurther information, you
may contact the Judicial Inquiry Commission, P.
O. Box 303400, Montgomery, Alabama 36130­
3400; tel.: (334) 242-4089; fax: (334) 353-4043.