ABA Ethics Opinion Cautions Judges of Potential Pitfalls in Fundraising for Problem-Solving Courts

CHICAGO, Dec. 17, 2008—Judges in special courts created to solve problems related to drug, mental health and domestic violence-related charges may solicit private donations to support the courts, but must be wary of potential ethical pitfalls, according to the American Bar Association Standing Committee on Ethics and Professional Responsibility.

Problem-solving or therapeutic courts typically rely on government funding for staff and physical space.  But the funds may not support alternative remedies the courts employ, which may involve services of mental-health professionals, drug-testing laboratories and social workers, and often involve incentives for successful participants.  Judges administering such programs may be urged to seek funding from private sources, through grants or donations from individuals or organizations.  Sometimes, proponents of the courts form not-for-profit entities to raise private funds.

In newly-issued Ethics Opinion 08-452, the committee identified provisions in the ABA Model Code of Judicial Conduct offering guidance to judges presiding in such courts, and cited opinions from Arizona and Florida for additional analysis.

An overarching concern related to fund-raising is compliance with the general rules requiring judges to conduct their personal affairs and extrajudicial activities to minimize risk of conflict with their judicial office obligations.  The Model Code admonishes judges not to participate in activities that will interfere with performance of their duties; that will lead to frequent disqualification; that will appear to undermine the judge’s independence, integrity or impartiality; that will appear to be coercive; or that would use court premises, staff, stationery, equipment or other resources unless such use was incidental to activities concerning the law, legal system or administration of justice or is otherwise permitted by law.

The Model Code permits judges to directly solicit donations only from family members or other judges over whom the soliciting judge has no direct supervisory authority.  It also permits judges to recommend programs to fund-granting organizations or entities, but only when the organizations or entities are concerned with the law, the legal system or the administration of justice.  The code also permits judges to serve as directors of organizations or entities that would not be parties to proceedings that ordinarily would come before them or be frequently engaged in proceedings over which the judge’s court had appellate jurisdiction.  Inherent in allowing judges to hold such office is permitting use of their names on organizational letterhead, although judges would not be permitted to sign solicitation letters, according to the opinion.

The opinion notes that judges who learn that parties or lawyers appearing before them have made contributions in response to the judges’ solicitation would need to examine the circumstances to determine whether they might reflect adversely on the judges’ impartiality.  Among factors judges should consider are the size and importance of the contributions, according to the opinion

The ABA committee noted a 1997 opinion by the Arizona Supreme Court Judicial Ethics Advisory Committee concluding that a court’s endorsement of its own grant application would not generally advance the private interests of a judge or others, and concurred.  It also agreed with a 2007 ruling by the Florida Supreme Court Judicial Ethics Advisory Committee raising special concerns and prohibiting judges from soliciting contributions for incentive gifts from lawyers or law firms to reward successful participants in drug court programs.  Such gifts from lawyers who appear before a judge would raise questions about partiality or could require potentially burdensome disqualifications by judges from hearing cases involving the donating lawyers, said the committee.

The Model Code of Judicial Conduct, revised by the ABA House of Delegates in 2007, is the association’s recommendation of principles of judicial conduct, enforceable rules and comments providing guidance in interpreting and applying the rules.  They are binding on individual judges to the extent they are adopted by the highest court of the jurisdiction in which the judge holds court.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships, and the ABA Model Code of Judicial Conduct to specific issues of judicial conduct.

The opinion is available from the ABA Center for Professional Responsibility at http://www.abanet.org/cpr

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.