May a judge perform or serve as a talent judge at a State Bar Foundation fundraiser for legal services?

Plain-English summary

A judge asked whether a judge could perform or judge talent at a State Bar Foundation fundraiser supporting legal services for indigent clients. The committee had rejected the same activity under an earlier Code in AO 08-04, but said the Code effective January 1, 2012 changed its answer. Source: Opinion 12-02, p. 1

The committee pointed to Rule 21-307(A)(3) and its commentary, which expressly allows judges to take part in theatrical or musical performances with others at fundraisers. It said a judge could also serve as a talent judge, reasoning that reviewing others' performances showed less visible support for the cause than performing. It noted uncertainty about an exclusive solo performance under the rule's wording. Source: Opinion 12-02, pp. 2–3

The committee retained limits: judges generally could not directly solicit contributions, and performances still had to comply with Rules 21-307 and 21-301's limits on activity that undermines judicial independence, integrity or impartiality. It instructed readers to disregard the 2008 opinion on this subject in favor of this one. Source: Opinion 12-02, pp. 2–3

In practice

The opinion permits the described participation in a legal services fundraiser under the revised Code, while distinguishing performance from direct solicitation. Its conclusion on solo performance is expressly qualified. Source: Opinion 12-02, pp. 2–3

Common questions

Q: May a judge be a performer at the fundraiser?

A: Yes, the committee said the revised Code permits artistic performance in support of such causes, while noting a possible question about an exclusive solo engagement. Source: Opinion 12-02, p. 2

Q: May the judge rate other performers?

A: Yes. The committee concluded that serving as a talent judge at the event did not, by itself, create impermissible favoritism or an appearance of impropriety. Source: Opinion 12-02, pp. 2–3

Q: Does this opinion retain the committee's 2008 prohibition?

A: No. The committee explicitly told judges to disregard AO 08-04 on this question in favor of its analysis under the new Code. Source: Opinion 12-02, pp. 1, 3

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rule 21-307(A), including subsections (A)(2) and (A)(3), and Rule 21-307(B)'s support for legal services programs. It also cited Rule 21-301's limits on outside activity. Source: Opinion 12-02, pp. 1–3

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-307(A), (A)(2), (A)(3), (B), and 21-301. Source: Opinion 12-02

Other opinions cited:

• AO 08-04, prior advice under the former Code that this opinion says to disregard. Source: Opinion 12-02, pp. 1, 3

See also

• NM Judicial Ethics Op. 12-01: Bail-Bond Conference Talk
• NM Judicial Ethics Op. 13-09: Law School Art Exhibit

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 12-02

Original opinion text

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

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair

Hon. Kevin L. Fitzwater

Paul L. Biderman, Esq.

Prof. Robert L. Schwartz

Hon. Freddie J. Romero

February 7, 2012

You have asked the Advisory Committee on the Code of Judicial Conduct for guidance as to whether a judge may participate, either as a performer or talent judge, in a State Bar Foundation fundraising event to support legal services programs for indigent clients. In 2008, the Committee addressed this same question under our former Code of Judicial Conduct in AO #08-04, and, at that time, we advised that such activity would violate the Code. With the adoption of our new Code, however, that advice has now changed: effective January 1, 2012, judges may participate in either capacity in such fundraising programs, subject to certain limitations. This opinion letter will attempt to explain the newly allowed activity and outline some of

those limitations.

Rule 21-307(A) NMRA 2012 of the new Code provides a non-exclusive list of activities judges may engage in to support both law-related and charitable causes. According to official Code committee commentary paragraph 3, a rule overly restricting judicial attendance at and participation in such activities would isolate judges from their communities and discourage efforts to gain public support for the judiciary. The rule is intended to strike a balance between that result and the equally undesirable extreme that would arise from allowing judges to use their status to

coerce people into making contributions.

While. many of the permissible activities of the new rule are essentially unchanged from those authorized in the prior rule, one significant change is the activity in which judges may participate at fundraising events for law-related and charitable organizations. This participation now includes “appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity.” Rule 21-307(A)(3). Judges still may not, however, directly solicit contributions at such events or otherwise, except from their family members or from other judges over whom they do not exercise supervisory or appellate jurisdiction. Rule 21-307(A)(2). Even more explicitly with regard to your inquiry, the commentary to this rule states in paragraph 3 that: “It is generally permissible for a judge to serve as an usher or a food server or preparer, to be part of a theatrical or musical performance with others, to introduce speakers or present awards... .” Id. The italicized language in the rule and commentary leaves no doubt that judges may now participate in artistic performances to support any of the listed law-related or

charitable activities (although there may be arguably be some question as to whether a judge could perform in an exclusive and solo engagement, as the rule is worded). We also note the language favorable to judicial encouragement of legal service programs in Rule 21-307(B), further underscoring the new policy.

Although the question of whether judges may serve as talent judges of performers at the fundraising event is not explicitly addressed by the rule or commentary, the list of permissible activity in the rule is not exclusive. Performing publicly at a fundraiser, which is now explicitly permitted, would seem to this Committee to show far more visible support by the judge for the cause involved than would judging the merits of performances by other contestants. Based on the intent of the new Code, we do not believe that a law judge serving as a talent judge at such an event could reasonably be seen as impermissibly favoring or being influenced in his or her official duties by a person whose performance is being judged; exercising prestige of office in support of private interests; or otherwise creating an appearance of impropriety merely by reviewing and rating performances of others, regardless of whether those performers might appear before the judge in a more weighty context at another time. ;

Therefore, as a general rule, judges are now free to perform at fundraising

events. However, those who do so must still exercise sound discretion to avoid appearances of impropriety. Paragraph 2 of the commentary to Rule 21-307 cautions against supporting activities that would “conflict with the judge’s obligation to refrain from activities that reflect adversely upon a judge’s independence, integrity, and impartiality.” Moreover, the entire rule is subject to the requirements of Rule 21-301 NMRA 2012, which further constrains judges generally in their outside activities. This rule and associated commentary create boundaries designed to protect the integrity of the judiciary and its resources. Any judge contemplating activity encompassed within Rule 21-307 should carefully consult Rule 21-301 to ensure that the planned activity complies with those requirements.

In light of the adoption of the new Code and its revised provisions, we advise the judiciary henceforth to disregard our former opinion on this subject, AO #08-04, in favor of this new opinion.

Very truly yours,

James J. Wechsler
Chair

JIW:ow

cc: Hon. Kevin L, Fitzwater
Hon. Freddie J. Romero
Paul L. Biderman
Professor Robert L. Schwartz