Can a judge solicit local businesses to donate items used as rewards for a specialized-docket program?

Plain-English summary

A municipal court judge running a certified mental health court wanted to solicit local businesses, by a signed letter and through court staff, to donate small items such as umbrellas, gloves, and gift certificates as rewards and incentives for participants. The Board concluded the judge may not do so. Jud.Cond.R. 3.7(A)(2) prohibits a judge from soliciting donations or contributions for organizations, including governmental entities, and because a court is a governmental entity, soliciting funds, services, or goods on the court's behalf is prohibited even though the court would benefit (ABA Op. 08-452). A judge's staff also may not make the solicitation, because the judge must ensure that staff under the judge's direction act consistently with the judge's own obligations (Jud.Cond.R. 2.12); staff cannot be directed to do what the judge cannot.

The Board contrasted this with grant applications, which Jud.Cond.R. 3.7(A)(6) specifically permits a judge to make in support of his or her court when the grant-making organization is concerned with the law, the legal system, or the administration of justice. The Board also identified additional concerns with solicitation: it can raise questions about the judge's impartiality and create an appearance of impropriety, especially where the solicited business appears before or does business with the court (Jud.Cond.R. 1.2, 3.1(C)); it can be perceived as coercive (Jud.Cond.R. 3.1(D)); it can lead a donor to believe it can influence the judge or trade on the prestige of office (Jud.Cond.R. 1.3, 2.4); and it can raise disqualification issues (Jud.Cond.R. 2.11).

The Board limited the opinion to solicitation, noting it does not address a court's acceptance of unsolicited donations. It also explained that the Ohio Ethics Law (R.C. 102.03) does not apply here, because the donated items would benefit court participants rather than the judge personally, but that the Code of Judicial Conduct independently prohibits the solicitation.

In practice

Under this opinion, a judge may not solicit, or direct court staff to solicit, donations of goods from local businesses for a specialized-docket program, because Jud.Cond.R. 3.7(A)(2) bars a judge from soliciting contributions for a governmental entity such as a court. Per the opinion, a judge may instead apply for grant funds to support the court under Jud.Cond.R. 3.7(A)(6). The opinion notes it does not address a court's acceptance of unsolicited donations, and that the inapplicability of the Ohio Ethics Law does not change the result under the Code of Judicial Conduct.

Common questions

Q: Can a judge ask local businesses to donate items for a specialty-court program?

A: No. The opinion concludes a judge may not sign a letter soliciting donations from local businesses for a specialized docket, because Jud.Cond.R. 3.7(A)(2) prohibits a judge from soliciting contributions for a governmental entity, including the court.

Q: Can the judge have court staff make the solicitation instead?

A: No. The opinion concludes a judge may not direct court staff to do what the judge is prohibited from doing, because the judge must ensure staff act consistently with the judge's obligations (Jud.Cond.R. 2.12).

Q: Is there a permitted way to fund a specialized docket?

A: Per the opinion, a judge may apply for grant funds to support the court under Jud.Cond.R. 3.7(A)(6), when the grant-making organization is concerned with the law, the legal system, or the administration of justice.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud.Cond.R. 3.7 (participation in educational, religious, charitable, fraternal, or civic activities, including the solicitation prohibition and the grant-application exception), with Jud.Cond.R. 1.2, 1.3, 2.4, 2.11, 2.12, and 3.1. It also addresses the Ohio Ethics Law (R.C. 102.01, 102.03).

Citations and references

Rules of Professional Conduct:

• Ohio Jud.Cond.R. 3.7(A)(2), 3.7(A)(6) (solicitation prohibition; grant-application exception)
• Ohio Jud.Cond.R. 1.2, 1.3, 2.4 (appearance of impropriety; prestige of office; influence)
• Ohio Jud.Cond.R. 2.11, 2.12, 3.1 (disqualification; staff; extrajudicial activities)

Statutes:

• R.C. 102.01(B), 102.03 (Ohio Ethics Law); Sup.R. 36.20 (specialized dockets)

Other opinions cited:

• ABA Op. 08-452 (2008); Ohio Adv. Op. 2004-05; Adv. Op. 2004-06

See also

• Ohio BPC Op. 1987-009: Retired Judge on a Restoration Fund-Raising Committee
• Ohio BPC Op. 2002-009: Judge Serving on Government Boards and Councils

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2023/02/Adv.-Op.-2023-01-Final.pdf

Original opinion text

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

OPINION 2023-01
Issued February 3, 2023
Withdraws 2004-13

          Judge Soliciting Donations for Specialized Docket Court

SYLLABUS: A judge may not sign a letter soliciting local businesses to donate items for
use as program rewards and incentives for participants in a specialized docket court. A
court employee, at the direction of a judge, may not solicit local businesses to donate
items for use as program rewards and incentives for participants in a specialized docket
court.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. D. CHRIS COOK RICHARD A. DOVE
CHAIR DIRECTOR
PATRICK M. MCLAUGHLIN D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                      OPINION 2023-01
                                   Issued February 3, 2023
                                     Withdraws 2004-13

                Judge Soliciting Donations for Specialized Docket Court

SYLLABUS: A judge may not sign a letter soliciting local businesses to donate items for
use as program rewards and incentives for participants in a specialized docket court. A
court employee, at the direction of a judge, may not solicit local businesses to donate
items for use as program rewards and incentives for participants in a specialized docket
court.

APPLICABLE RULES: Jud.Cond.R. 1.2, 1.3, 2.4, 2.11, 2.12, 3.1, 3.7

QUESTIONS PRESENTED:

       1).     May a judge sign a letter soliciting local businesses to donate items for use

as program rewards and incentives for participants in a specialized docket court?

       2).     May a judge direct a court employee to solicit such donations?

OPINION:

       A municipal court judge has established a mental health court as a specialized

docket certified under Supreme Court rule. Sup.R. 36.20. The judge desires to use items
of de minimis value, such as umbrellas, gloves, hats, and gift certificates, as rewards and
incentives for mental health court participants. The judge proposes to distribute a signed
letter soliciting donations from local businesses and to also direct court employees to
directly solicit businesses for the items.
Op. 2023-01 2

Impermissible solicitation

    Judges are prohibited from soliciting donations or contributions for organizations

including governmental entities. Jud.Cond.R. 3.7 (A)(2). Because a court is a
governmental entity, the solicitation of funds, services, or goods on behalf of a court by a
judge for a specialized docket program is prohibited, even though the court would
directly or indirectly benefit from the ensuing contribution or donation. ABA Op. 08-452
(2008). A judge’s staff is also prohibited from soliciting donations from local businesses
due to the judge’s duty to ensure that staff subject to the judge’s direction and control act
in a manner consistent with the judge’s obligations under the Code of Judicial Conduct.
Jud.Cond.R. 2.12. A judge’s staff cannot be directed to engage in a solicitation when the
judge is prohibited from engaging in such conduct under the Code of Judicial Conduct.

    By contrast, the Code of Judicial Conduct does not prohibit a judge from seeking

grant funds to establish or support a specialized docket program in his or her own court.
Jud.Cond.R. 3.7(A)(6); ABA Op. 08-45. Jud.Cond.R. 3.7(A)(6) specifically permits a judge
to make a grant application in support of the operation of his or her court when the grant-
making organization is concerned with the law, the legal system, or the administration
of justice. Id.

Other ethical considerations

    A judge must always act in a manner that does not appear to a reasonable person

to undermine the judge’s independence, integrity, or impartiality. Jud.Cond.R. 3.1(C).
The solicitation of donations from businesses, especially those that may have matters
before the court or that are seeking or doing business with the court, may raise reasonable
questions as to the judge’s impartiality, create an appearance of impropriety, and erode
the public’s overall confidence in the judiciary. Jud.Cond.R. 1.2. When engaging in any
extrajudicial activity, a judge must not act in a manner that could be perceived as
coercive. A solicitation by a judge for a donation to a court, while impermissible under
the Code of Judicial Conduct, could be perceived as coercive by the recipient of the
request. Jud.Cond.R. 3.1(D); Jud.Cond.R. 3.1, cmt.[4] (a judge’s solicitation might create
the risk that the person solicited would feel obligated to respond favorably or would do
so to seek favor with the judge.) The solicitation and receipt of donations from frequent
Op. 2023-01 3

parties in litigation before the court may also give rise to potential disqualification issues.
Jud.Cond.R. 2.11.

   Soliciting local businesses for donations when performed by a judge or employee

on behalf of the court potentially implicates the prohibition against abusing the prestige
of office or allowing others to do so. Jud.Cond.R. 1.3. When a judge makes a solicitation
in his or her official capacity on behalf of the court, a prospective donor may feel
compelled to contribute or, after donating, believe that he or she is able to influence the
judge in the future or trade on the prestige of the judicial office. This is especially true if
the business or business owner is a frequent party before, or does business with, the
soliciting judge’s court. An additional rule requiring a judge to avoid permitting others
to convey an impression that a person or organization is in a position to influence the
judge further reinforces the prohibition against solicitation of local businesses by judges.
Jud.Cond.R. 2.4. Acting contrary to Jud.Cond.R. 2.4 also creates the potential for an
appearance of impropriety. Jud.Cond.R. 1.2.

   While neither a judge nor a member of his or her staff may solicit donations or

contributions from local businesses under the Code of Judicial Conduct, this advisory
opinion does not address a court’s acceptance of unsolicited donations or contributions.
See Adv. Op. 2004-05 (the acceptance of unsolicited and generous donations by court
prohibited under some circumstances.)

Inapplicability of Ohio Ethics Law

   Judicial officers and employees are subject to the Ohio Ethics Law. R.C. 102.01(B).

R.C. 102.03 prohibits the misuse of public office to secure, solicit, or accept a thing of value
that is of such a character as to manifest a substantial and improper influence with respect
to official duties. Because the donated items under the facts presented would be used as
a reward or incentive for mental health court participants, and not result in any personal
or economic benefit to the judge, the statutory prohibition does not apply to the
solicitation or receipt of donations by a judge. This Board has previously opined that the
donation of a thing “of value to a court [is] distinct from donations of things of value
made to individual judicial officers and employees” and consequently is not prohibited
under the Ohio Ethics Law. Adv. Op. 2004-06. Notwithstanding the inapplicability of
Op. 2023-01 4

the Ohio Ethics Law to the questions presented, the Code of Judicial Conduct prohibits
the solicitation of a donation or contribution to a court by a judge or his or her staff.