Fundraising Restrictions

Fundraising Restrictions

Rule 3.7(A) lets a judge take part in the activities of a qualifying organization, “including but not limited to” the activities it lists, and five of the listed activities involve raising money or deciding who receives it.¹ A qualifying sponsor and a clean passage through the general limits only bring a judge to the threshold of each activity, because the permission opens “Subject to the requirements of Rule 3.1” and several listed activities carry conditions of their own. Fundraising is where those conditions are most numerous and most sharply drawn.

The conditions follow one line, the line between governing an organization’s money and asking other people for it. A judge who helps plan a campaign or oversee investments works out of the donors’ sight, and no one has to answer the judge. A judge who asks for a gift stands somewhere else entirely. The person asked knows that the requester may one day decide that person’s case, so refusing feels risky, agreeing feels like buying goodwill, and onlookers may suspect that the judge keeps count of who gave. The worthiness of the cause changes none of this, because the pressure comes from the office of the person asking. It is the pressure behind the coercion limit discussed earlier in this chapter, applied to money.

The Supreme Court has described that pressure in the election setting. Florida’s Canon 7C(1) governs fundraising in judicial elections, and Florida’s code separately bars judges from personally participating in soliciting funds for nonprofit organizations.² The Court’s decision on the campaign canon, Williams-Yulee v. Florida State Bar, is no holding about Rule 3.7, and the Florida code is not the Model Rule. Both appear below as accounts of why personal solicitation is dangerous, and neither is authority on how the rule applies.

The five activities carry five different conditions, and the law-related category recurs in three of them:

• Planning and managing funds is open for any qualifying organization, with no condition beyond the general limits.
• Soliciting contributions is open for any qualifying organization, but only to family members and to judges outside the soliciting judge’s supervisory or appellate authority.
• Soliciting membership is open only for an organization concerned with the law, the legal system, or the administration of justice.
• Appearing at an event is open for any qualifying organization, unless the event serves a fund-raising purpose, and then the event itself must concern the law, the legal system, or the administration of justice.
• Recommending grants is open only when the funder is concerned with the law, the legal system, or the administration of justice.

A sensible account of the pattern is that, where the organization or event concerns the law, the judge’s training and office are the natural reason for the invitation, so the judge’s presence reads as a contribution to the work. In a general charity the title adds little except the weight it carries with the people being asked. The subsections follow, beginning with the behind-the-scenes work that the rule leaves open to every qualifying organization.

Planning and Managing Funds

Rule 3.7(A)(1) gives a judge two permissions about money, and both operate away from the people who might donate. The judge may assist a qualifying organization “in planning related to fund-raising,” and may participate “in the management and investment of the organization’s or entity’s funds.”³ The first covers campaign strategy: setting a goal, drafting a budget, choosing a timeline, deciding which programs the money will support. The second covers stewardship of money the organization already holds, such as serving on an investment committee that selects an adviser and reviews performance. Neither involves asking anyone for anything.

The rule allows these activities because they leave out the request. The pressure that makes fundraising dangerous for a judge comes from a request, and planning a campaign or overseeing investments never puts the judge’s name or personal appeal before a prospective donor. No one has to answer the judge, and no observer can conclude that the judge is tracking who gave and who declined. With that pressure absent, the rule lets judges contribute what they do well, which is careful judgment about budgets, risk, and priorities.

The permission reaches every qualifying organization. The rule speaks of “such an organization or entity,” which points back to both families of sponsor in the lead-in, so a judge may help plan the fundraising of a hospital foundation or a church school as readily as that of a legal aid society.⁴ The contrast with event participation shows why. A judge who appears at an event serving a fund-raising purpose, or permits the use of the judge’s title there, may do so only if the event concerns the law, the legal system, or the administration of justice,⁵ because in those activities the judge’s title or presence is what the audience sees. A judge may therefore help plan a charity’s fund-raising event and still be barred from appearing at it, since (A)(1) governs the planning and (A)(4) the appearance.

The two scenes involve the same judge, the same fund, and the same cause. The moved fact is whether the judge personally asks. The boundary falls at the moment a request from the judge reaches a prospective donor, whether by telephone, by a letter the judge signs, or by an approach in person. Everything before that moment is planning, and everything after it is solicitation. Students are tempted to read planning as covering whatever helps the campaign succeed, which would let a personal ask pass as strategy, but the rule’s wording follows the line between governing and asking.

The permission leaves the other limits in place. Rule 3.7(A) remains subject to the general limits on extrajudicial activity,⁶ and a judge who sits on an investment committee may also hold an office such as treasurer or trustee, in which case the leadership limits covered earlier in this chapter apply as well.

Soliciting Contributions

Rule 3.7(A)(2) allows a judge to solicit contributions for a qualifying organization, “but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority.”⁸ The word “only” makes the permission a narrow safe harbor: two groups may be asked, and nobody else. This is the first activity on the asking side of the line drawn above, and its audience is the tightest in the rule. A solicitation puts the judge’s own request before a person who must decide how to answer it, so the rule confines that request to people who will not feel the weight of the office.

The bar on asking everyone else needs no separate sentence, because it follows from the narrowness. A judge who personally asks lawyers who may appear in the judge’s court, litigants with pending matters, court staff, or anyone outside the two groups has nothing in Rule 3.7(A)(2) to rely on, and the general limit against coercive conduct points the same way.⁹ A qualifying sponsor and an admirable cause answer only which organization is involved. They say nothing about who may be asked, and no charitable purpose creates an exception to the audience limit.

The rule marks “soliciting,” “contributions,” and “family” with asterisks, which in the Model Code signals terms defined in its Terminology.¹⁰ A close question about who counts as family is answered there, and a judge in doubt checks the definition instead of trusting a hunch. Most exam stems skip the margins and make the relationship plain: a brother, a spouse, a lawyer who appears every week.

Each permitted audience is safe for its own reason. A member of the judge’s family has a relationship that exists apart from the courthouse, so the request arrives as a family request and the answer does not turn on whether the judge might someday rule on that relative’s affairs. Judges over whom the soliciting judge has no supervisory or appellate authority are safe by a different route, because they are peers whose rulings the requester never reviews and whose assignments the requester does not control. The qualifier about authority carries most of the weight in this second group. A trial judge whose rulings an appellate judge reviews, or a judge whose work a presiding judge supervises, stands toward the requester much as a lawyer with a case pending does, with something to lose by refusing, and the rule treats that dependency as disqualifying whatever the person’s title.

The people the rule keeps out are the ones the Supreme Court had in view in Williams-Yulee. That decision concerned personal solicitation of campaign funds by judicial candidates, so it is no holding about Rule 3.7, but its account of the pressure explains this rule. The Court recognized that a judge’s personal request for money could create, even unknowingly, a temptation that threatens the balance a judge must keep, and that the risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge.¹¹ It also accepted Florida’s conclusion that a request made by the candidate personally carries a categorically different and more severe risk than one made through a third party, because the person asked knows that the same person who signed the letter might one day sign the judgment.¹² A charitable appeal puts the same audience in the same position. A lawyer asked to buy a table at a benefit knows that the asker also rules on the lawyer’s motions, and the goodness of the cause does nothing to remove that knowledge.

The exam version of this rule usually offers a more tempting audience, and the most common is the lawyers who fill the judge’s calendar.

The second group in the safe harbor produces a subtler trap, because the word “judge” in the rule is not enough by itself.

All the recipients in that last scene are judges, and only some are inside the safe harbor, so the deciding fact is authority and not office. The authority also runs in one direction, from the requester to the person asked. The same trial judge could properly be asked by a judge of another state’s court, who has no power over the trial judge’s work.

Because the rule turns on who is asked, a problem about a judge’s fundraising is best run by identifying the audience before anything else.

Step four is where candidates most often lose points, because a sympathetic charity makes a request feel harmless. The charity settles step one only, and the identity of the person asked settles the rest.

Soliciting Membership

Rule 3.7(A)(3) allows a judge to solicit membership for a qualifying organization, “even though the membership dues or fees generated may be used to support the objectives of the organization or entity,” but “only if the organization or entity is concerned with the law, the legal system, or the administration of justice.”¹⁴ The contribution rule limits who may be asked, whatever the organization does. The membership rule reverses that design. Its text sets no limit on the audience and puts the limit on the organization, so the question for a membership drive is what the organization is for. Rule 3.7(A) as a whole remains subject to the general limits in Rule 3.1, so the manner of an invitation can still be challenged when the organization qualifies, but the subject-matter limit decides most problems.¹⁵

A judge’s own membership is a separate matter from recruiting others. The lead-in to Rule 3.7(A) names fraternal organizations among the qualifying sponsors, so a judge may belong to a lodge that is not conducted for profit, attend its meetings, and take part in its work, provided the general limits are met.¹⁶ What paragraph (A)(3) withholds is the act of inviting other people to join, and it withholds that act from every qualifying organization that is not concerned with the law. Students who read the list of qualifying sponsors and assume every listed activity is open to every listed sponsor lose points here, because the membership provision admits a narrower set of organizations than the lead-in does.

Each side of the line has its own reason. A bar association committee on access to justice exists to improve the system in which the judge works, so the judge’s office is the natural basis for the invitation, and a judge who urges lawyers to join acts as a colleague in a shared project. An organization with no tie to the law has no such explanation, and the office is all that distinguishes the judge’s invitation from any neighbor’s. A lawyer asked to join a lodge by the person who rules on the lawyer’s motions knows who is asking. Declining feels risky, joining feels like buying goodwill, and an observer who sees a judge recruiting among the lawyers who appear in court may conclude that membership is a way to stand well with the bench. That is the pressure behind the coercion limit and the narrow audience for contributions, applied here to an invitation to belong.

The dues clause closes a gap the subject-matter limit would otherwise leave open. Membership fees are regular payments that support what the organization does, so they can function like contributions. If any qualifying organization could be the subject of a membership drive, a judge who may not ask lawyers for gifts could ask them to join for an annual fee and collect much the same money under much the same pressure. Confining membership drives to law-related organizations keeps that route from becoming a loophole, and for those organizations the clause confirms that dues funding the work do not turn an invitation into forbidden fundraising. Dues therefore settle nothing in either direction. They do not rescue a drive for a lodge, and they do not disqualify one for a bar committee.

The audience in the two scenes is the same, lawyers who may appear in the judge’s court, and so is the fact that dues support the organization. The moved fact is the organization’s subject matter, which is why the lodge invitation fails and the bar committee invitation succeeds.¹⁷ An exam stem often surrounds the question with features that seem relevant: a worthy purpose, a modest annual fee, an audience of friendly lawyers, an organization the judge has long belonged to. None of them changes the answer, because the rule asks only whether the organization is concerned with the law, the legal system, or the administration of justice.

Step three is where candidates most often lose points, because a respectable sponsor and a low fee make the invitation look harmless. The sponsor’s qualifying status answers only step one, and the organization’s subject matter answers the rest.

Events and Recognition

Rule 3.7(A)(4) lists four ways a judge may take part in an event of a qualifying organization: appearing or speaking at it, receiving an award or other recognition at it, being featured on its program, and permitting the judge’s title to be used in connection with it.¹⁹ The same clause then adds a condition. If the event “serves a fund-raising purpose,” the judge may participate only if the event concerns the law, the legal system, or the administration of justice.²⁰ Because the clause sits under the general permission, the sponsor must still qualify and Rule 3.1 still applies.²¹ The provision therefore asks a question about the event on top of the question about the sponsor. Where the contribution rule limits whom a judge may ask for money, this rule limits what the judge may do at an event, so a judge who asks nobody for anything can still violate it.

Each of the four forms puts the judge’s name, face, or title before an audience as part of what the event offers. A speaker is announced as an attraction, an honoree is presented to the room, a name on a program tells readers who will be there, and a title on an invitation does its work before anyone arrives. The last form explains why the rule says permitting the title to be used: a judge need not attend for the title to draw a crowd, so letting it appear on a flyer counts as participation just as standing at a podium does.

The fund-raising condition rests on what a judge’s name does for a fundraiser. A featured judge is a draw, and guests buy tickets and sponsors buy tables in part because the judge will be there. Many of those guests are lawyers, and a lawyer who receives an invitation headed by the judge before whom the lawyer appears knows that it arrives with the weight of the office. Declining feels risky and buying a ticket feels like a way to be remembered. The organization then collects money that exists only because the judge lent the prestige and pressure of the office to it. That is the mechanism behind the coercion limit, applied to an event instead of a letter, and it operates whatever the cause.

Two situations keep the condition from swallowing the permission, and each has its own reason. If the event serves no fund-raising purpose, nobody is being asked to pay on the strength of the judge’s name, so the pressure shrinks and the ordinary permission for qualifying organizations governs. If the event does serve a fund-raising purpose but concerns the law, the legal system, or the administration of justice, the judge’s participation advances the justice system itself, and the judge’s training and experience are the natural reason for the invitation. Only the event that raises money for a cause with no connection to the law is closed, because there the title adds nothing except its weight. The analysis is therefore two questions in a fixed order: first whether the event serves a fund-raising purpose, and then, only if it does, whether the event concerns the law.

The two boxes show two routes to a permitted appearance. The lecture and the luncheon pass at the first question because no fund-raising purpose is present, so the second question never arises. The legal-aid dinner does serve a fund-raising purpose and passes only at the second question. The university gala fails there, and the fact that moved the answer in the first box is whether the event raises money, since the sponsor qualified in both scenes. Students often assume that a sponsor who passes the opening test makes every event safe, and this rule is where that assumption costs points.

Whether an event serves a fund-raising purpose is a question about what the event is for, and its label does not control. A benefit auction or a ticketed gala whose proceeds go to the organization plainly serves one, and a free public lecture or a regular club meeting plainly does not. The second question also deserves attention to the text. The condition asks whether the event concerns the law, while the membership rule asked whether the organization is concerned with it. In the usual setup, such as a bar foundation’s dinner for legal aid, the two point the same way. The permission also reaches only events of the organizations that Rule 3.7(A) names, so an event hosted by a for-profit business is outside this clause even when it raises no money, and the judge must test it under the general limits and the rules on business activity.²²

Step four is where candidates most often go wrong, because a small role, such as a short toast or a name on a program, feels too minor to matter. The condition applies to all four forms alike, so the size of the role does not change the answer. A judge who also refrains from personally asking anyone for money is still barred from the non-law-related fundraiser, because the limits on personal solicitation are a separate rule with a separate audience, and passing one rule never satisfies the other.

Fund-Granting Recommendations

Rule 3.7(A)(5) lets a judge make recommendations to a public or private fund-granting organization in connection with its programs and activities, but only if that organization is concerned with the law, the legal system, or the administration of justice.²⁴ The activity is advisory. A judge who sits on a funder’s review panel, answers a program officer’s request for an opinion, or writes a letter urging that a project receive money is making a recommendation, and the rule attaches the same condition to every form of it. That condition follows a pattern you have now met twice in this chapter. Soliciting membership is open only for law-related organizations, and taking part in an event that serves a fund-raising purpose is open only when the event concerns the law, the legal system, or the administration of justice.²⁵ Grant recommendations join them, so three activities share one law-related limit, worded in terms of the organization in two of them and in terms of the event in the other.

The reason for the limit lies in what a recommendation does. A funder’s decision gives money to some applicants and withholds it from others, and advice from a person whose office carries weight can tilt that decision. Applicants to a general funder are numerous and varied, and some may be organizations that lawyers sit on, that litigants belong to, or that have matters before the judge’s court. A judge who steers money among such applicants may end up favoring or disfavoring people connected to cases the judge decides, and an observer who learns of it may conclude that the judge dispenses benefits whose goodwill is worth cultivating. The leverage is the same office-based leverage that shaped the contribution and membership rules, but it runs the other way. In solicitation the judge asks others for something, while here the judge helps decide who receives something, so the person affected is the applicant who stands to gain or lose.

A law-related funder presents a different picture. A foundation that supports court improvement exists to strengthen the system in which the judge works, and the judge’s knowledge of how courts operate is exactly what the funder wants when it asks for advice. The recommendation then draws on expertise and advances the funder’s own purpose, which shrinks the appearance that money is being steered for personal reasons. Because the condition concerns the organization that grants the money, the inquiry asks what the funder is concerned with, and the worthiness of a particular grantee cannot substitute for the answer.

Students often reason that a recommendation is harmless because the judge asks nobody for money and the cause is worthy. That instinct loses points, because the rule conditions this activity on the funder’s subject matter and says nothing about the judge’s motives or the grantee’s merits.

Both funders in that pair are nonprofits, both judges act in good faith, and neither asks anyone for money. The moved fact is the funder’s subject matter, which is why the arts recommendation fails and the court-improvement recommendation succeeds. A funder’s nonprofit status settles only the sponsor question that opened this chapter, and the specific condition on recommendations settles the rest.

A permitted recommendation still sits under the general limits. Rule 3.7(A) as a whole is subject to Rule 3.1,²⁶ so a judge who advised even a law-related funder to favor an organization that regularly appears before the judge would face the limit on conduct that undermines impartiality. The rule also differs from the permission to plan fund-raising and to manage an organization’s funds, which is open to every qualifying sponsor. There the judge governs the judge’s own organization, while here the judge advises an outside funder about who receives its money, and the narrower condition governs.