May a judge sell pottery at a law school alumni art exhibition when each buyer also donates to the school?

Plain-English summary

A judge was invited to exhibit pottery with other law school alumni and staff. Buyers would pay a fixed donation to the school and a separately fixed amount to the judge as artist. The exhibit would identify the judge only as an artist and alumna, not as a judge. Source: Opinion 13-09, p. 1

The committee found the display and sale compatible with Rule 21-307's allowance for limited support of charitable fundraisers. Displaying art for sale did not involve the direct personal solicitation the rule prohibited, and the committee found no impermissible use of judicial prestige. Source: Opinion 13-09, pp. 1–2

Under Rule 21-312, the judge could accept reasonable payment for otherwise permitted artistic activity. The committee also identified Rule 21-315's outside-income reporting requirement. It recommended stating that the judge would not be told buyers' identities, trying to avoid learning them, setting a firm advance price, and declining a higher price. A known buyer's later case could raise recusal concerns because the judge had benefited from the purchase. Source: Opinion 13-09, p. 2

In practice

The opinion permits this art sale on the described fixed-price and limited-identification facts. Its buyer-identity and price safeguards are the committee's recommendations for avoiding an appearance of impropriety, and the separate compensation remains subject to the cited reporting rule. Source: Opinion 13-09, pp. 1–2

Common questions

Q: May the judge receive money personally from pottery buyers?

A: Yes. Rule 21-312 allowed reasonable compensation for the otherwise permitted artistic activity, subject to outside-income reporting under Rule 21-315. Source: Opinion 13-09, p. 2

Q: Did the committee treat a price tag as prohibited personal solicitation?

A: No. It distinguished a display of art for sale from direct, personal solicitation by the judge. Source: Opinion 13-09, pp. 1–2

Q: Why did the committee address buyer identity?

A: A known buyer might later appear before the judge, and the judge's financial benefit from the purchase could then require recusal. The committee recommended avoiding knowledge of buyers' identities. Source: Opinion 13-09, p. 2

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rules 21-307 on charitable activity, 21-312 on reasonable compensation, 21-103 on prestige of office, 21-311 on business conflicts, and 21-315 on reporting outside income. It discussed the latitude afforded by the Code effective January 1, 2012. Source: Opinion 13-09, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-307, 21-307A(3), 21-312, 21-103, 21-311, and 21-315. Source: Opinion 13-09

See also

• NM Judicial Ethics Op. 13-03: Judge’s Photo and Charity
• NM Judicial Ethics Op. 15-03: Magazine Interview

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 13-09

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
Paul L. Biderman, Esq.

Prof. Robert L. Schwartz
Hon. Freddie Romero

November 4, 2013

Re: Judicial Advisory Opinion No. 13-09

You have been invited to submit your pottery for a Law Alumni art exhibition at the UNM

School of Law. Your pottery would be displayed along with art produced by other Law School

alumni and staff in the School of Law forum for approximately a month. During that time people

could commit to purchase any displayed pieces, for which they would take delivery after the last day

of the exhibit. You would be identified only as an artist and alumnae, not as a New Mexico state

judge. Each buyer of your work would be required to make two payments: (1) a tax-deductible

donation to the School of Law; and (2) a payment to you as the artist. Each of these two components

of the price would be fixed in advance and displayed with each piece and in an exhibit brochure.

You have asked the Advisory Committee on the Code of Judicial Conduct whether, under the Code of Judicial Conduct, you may participate in this exhibition under these circumstances.

Since your participation would financially benefit both the non-profit School of Law and you personally as the artist, the answer to your inquiry lies within two sections of the Code of Judicial Conduct: Rule 21-307 NMRA, which addresses support for charitable activities; and Rule 21-312 NMRA, concerning personal compensation for extra-judicial activities.

Rule 21-307 permits judges to assist non-profit organizations such as law schools in their fund-raising activities, within limits. Since the adoption of the current Code of Judicial Conduct effective January 1, 2012, judges have been afforded greater latitude than under previous codes to attend, speak at, and even perform at charitable fund-raising events. Rule 21-307A(3); see Committee Comment 3 (“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 and to perform similar functions, at fund-raising events.”) Given this recently increased latitude, the Committee believes that the display and sale of a judge’s artistic works in

support of a charitable cause are now permitted. While neither the rule nor the commentary directly addresses such sales, the Committee believes that such support constitutes the same “de minimis level of participation that is permitted and encouraged” as the examples cited in the Code comment. While the rule prohibits “personal or explicit” solicitation by the judge, displaying a work of art for sale does not entail the direct, personal contact this prohibition contemplates. Nor do we believe that your participation would constitute any impermissible use of your prestige of office. See Rule 21- 103 NMRA (prohibiting a judge from abusing the “prestige of judicial office to advance the personal

or economic interests of the judge or others”).

Your participation as an artist will also entitle you to receive separate personal compensation from purchasers of your pottery. Rule 21-312 authorizes judges to accept reasonable compensation for their extra-judicial activities so long as those activities are otherwise permitted by the Code. Business activities are prohibited when they create conflicts for the judge, will detract from the judge’s time to perform the judge’s official duties, or may exploit the judge’s official position for personal gain. Rule 21-311 NMRA. No such constraints generally apply to the production and sale of artistic work, so you may accept reasonable compensation for pieces. Like any judge earning outside income, you will be required to comply with the reporting requirements of Rule 21-315

NMRA.

The Committee nevertheless recommends that you consider adopting safeguards to prevent any appearance of impropriety. First, it is preferable to note prominently that you will not be told the identity of any buyer. You should make every effort to avoid learning the identity of any buyer, especially if the buyer is an attorney who may appear before you or party on whose interests you may be required to rule. Knowing the name of a buyer might later require you to recuse yourself from a case involving that person, since you will have benefitted financially from their purchase. Second, it is also preferable that you set a firm price in advance, and not accept a higher price, to avoid any appearance that the buyer (should his or her identity become known) is seeking to influence you.

Very truly yours,

James J. Wechsler
Chair

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