Can a lawyer contribute to a bar association fund that commissions a courthouse portrait honoring a retiring judge who will keep serving?

Plain-English summary

A local bar association wanted to honor a retiring Supreme Court Justice, who would likely keep serving by certification, by commissioning a portrait to hang in the courthouse, funded by member contributions of roughly $50 to $150, with contributors recognized in a newsletter or at a function. A member asked whether lawyers may make such contributions.

The committee starts with Rule 3.5(a)(1), which bars a lawyer from giving anything of value to a judge "when the recipient is prohibited from accepting the gift," and Rule 8.4(d) and (f), which bar conduct prejudicial to the administration of justice and knowingly assisting a judge's violation of the judicial-conduct rules. The analysis turns on what the Code of Judicial Conduct (Section 100.4(D)(5)) allows a judge to accept.

The committee makes two points. First, no tangible gift goes to any judge: a contributing member gives to the association, which donates the portrait to the courthouse, so the gift is to the court, and all the judge receives is the honor. The committee doubts that honor is a "thing of value" within Rule 3.5(a)(1); if it is not, funding the portrait does not violate the rule. Second, reviewing New York Advisory Committee on Judicial Ethics opinions (06-67, 91-50, 06-171, 93-42), the committee concludes a retiring judge would not violate the judicial-conduct rules by accepting such an honor, which is nominal and "incident to a public testimonial" under Section 100.4(D)(5)(a), and there is no solicitation by or for the judge.

The committee concludes that a gift to the court rather than to the judge, in connection with a public testimonial, could not reasonably be expected to influence the judge or interfere with the administration of justice, so the association may solicit the contributions and a lawyer may make one without ethical violation.

In practice

The opinion holds that a lawyer may contribute to a bar association's fund for a courthouse portrait honoring a retiring but still-serving judge, and the association may solicit those contributions. The committee identifies the controlling facts as the gift running to the court rather than the judge, the absence of any solicitation by or for the judge, and the judicial-ethics rules permitting a judge to accept an honor that is nominal and incident to a public testimonial.

Common questions

Q: Can a lawyer chip in for a portrait of a sitting or retiring judge?

A: Yes, on these facts. Per paragraphs 6 and 11, the gift is to the court and the honor is not a "thing of value" to the judge under Rule 3.5(a)(1), so the contribution is permissible.

Q: Does it matter that the judge is still serving on the bench?

A: Not on these facts. The committee treats the gift as one to the court, and paragraph 12 concludes a gift "in connection with a public testimonial" could not reasonably be expected to influence the judge.

Q: Could the bar association solicit members for the contributions?

A: Yes. Paragraphs 7 and 12 note there is no solicitation by or for the judge, and conclude the association may solicit the described contributions without any ethical violation.

Background and rules framework

The opinion interprets Rule 3.5(a) (Model Rule 3.5, improper influence on a tribunal and gifts to judges) and Rule 8.4(d) and (f) (Model Rule 8.4), reading them against Section 100.4(D)(5) of the Rules of the Chief Administrative Judge (the Code of Judicial Conduct) governing a judge's acceptance of gifts.

Citations and references

Rules of Professional Conduct:

• MR 3.5 / NY Rule 3.5(a)(1) (improper influence; gifts to judges the recipient may not accept)
• MR 8.4 / NY Rule 8.4(d), (f) (conduct prejudicial to justice; assisting a judge's violation)

Other authorities:

• Code of Judicial Conduct (22 NYCRR) Section 100.4(D)(5) (a judge's acceptance of gifts).
• N.Y. Jud. Adv. Ops. 06-67, 91-50, 06-171, 93-42 (judges accepting nominal gifts, testimonial gifts, and gifts to the court).

See also

• NY State Bar Op. 1040: Publicly defending a judge against unfair criticism
• NY State Bar Op. 995: Shared secretary with a related judge
• NY State Bar Op. 985: Former law clerk appearing before the employing judge

Source

• Landing page: https://nysba.org/ethics-opinion-953/