The Ethics Advisory committee has been asked whether the executive director and/or other members of a Judicial Council task force may solicit funds for task force research and other activities.

The Utah Judicial Council has established a task force to examine the issue of racial and ethnic fairness in the criminal justice system. The task force consists of approximately thirty members. Eight members are judges, with the others being representatives from the community and from allied criminal justice agencies. The task force has hired a director to facilitate its activities. In order to accomplish its objectives, the task force wishes to seek funding from potential sources, such as state and federal grants, the state bar, private foundations, corporations, law firms, the legislature and the judicial council itself. Fund-raising inquiries and efforts will be conducted by the task force director and/or other task force members who are not judges.

Canon 4C(3)(b)(i) states that a judge, as a member of a governmental agency, "shall not personally participate in the solicitation of funds or other fund-raising activities." Subparagraph (iv) states that a judge "shall not use or permit the use of the prestige of the judicial office for fund-raising." The Code contemplates that judges will become members of governmental committees that will address issues related to the law. The Code also contemplates that those committees might engage in fund-raising. Judges have traditionally been able to be members of these committees as long as they do not actively participate in fund-raising. The unique issue in this situation is that the judiciary has created the committee and hired a person to facilitate the committee's activities. The question, then, is whether the prestige of the judiciary would be implicated in the fund-raising activities by the task force director and its members. See Informal Opinion 98-2.

We note initially that the Code does not reach non-judicial employees, such as other members of the task force. However, judges must withdraw from participation in the task force if the non-judicial members use the prestige of judicial office in conducting the fund-raising activities.

The fact that the Judicial Council's name is associated with the task force does not automatically indicate that the prestige of the judicial office would be involved in fund-raising by task force members. To find otherwise would prohibit judicial committees, and the judiciary itself, from seeking government grants. See New York Advisory Committee on Judicial Ethics, Opinion 88-94 (determining that seeking grants is considered fund-raising). The fact that judicial organizations may solicit funds, even though individual judges can not, was implicitly supported by the Kansas Judicial Ethics Advisory Panel in Opinion JE-1. The Panel addressed whether a judge could solicit funds for the National Judges Education Association and Research Foundation, Inc. The Panel held that the judge could not personally solicit funds, but the Panel found that the judge could be associated with the organization even though it would conduct fund-raising. The Panel stated that "merely being an officer of the organization . . . is not to be considered as using the prestige of his office for gaining donations for the organization."

The Committee recognizes that the executive and legislative branches often organize committees, which have judges as members, devoted to the law and the administration of justice. These committees are free to fund-raise as long as judges are not actively involved in the fund-raising efforts. It would be ironic to allow those branches of government to seek funds for their efforts while applying a blanket prohibition against the judiciary, which is the branch most directly concerned with law and the administration of justice, from funding its efforts.

As a general rule, then, the task force director and other task force members may solicit funds for the task force, as long as judges do not participate in the process. In so concluding, the Committee does not determine that fund-raising would be appropriate by all judiciary committees. The purposes of the fund-raising will be important in determining whether the fund-raising implicates the prestige of the judicial office. Fund-raising for endeavors that will improve the administration of justice or the legal system will be less troublesome than fund-raising that will simply inure to the benefit of the judiciary. When fund-raising for projects that will improve the administration of justice, but not directly benefit judges, we believe that potential donors will be more concerned with giving to the particular project, than in attempting to curry favor with the judiciary. Thus, when a task force is seeking funds to study an issue such as racial and ethnic fairness, it is much more likely that potential donors would be interested in the subject matter, rather than being concerned with any benefit they might obtain through donation.

When conducting fund-raising, the task force director and task force members must be careful to avoid using judges, their names, or titles in fund-raising. Thus, for example, judiciary letterhead should not be used in fund-raising correspondence. The director and members may not affirmatively use judges' names or titles in their efforts, but they could respond to inquiries as to who serves on the task force, including giving the names of judges if asked.

Judges should not assist in planning the fund-raising, such as by identifying potential donors or fund-raising mechanisms. Judges may assist in determining how the funds could be best spent in pursuing the mission of the task force. If at all possible, judges should not be told who has made donations to the task force if the donors are lawyers, law firms, or organizations or persons likely to appear in court. If a judge on the task force becomes aware of the identity of a donor who is then appearing before the judge, the judge should enter disqualification. The committee understands that the task force will issue a final report in which all donors will be recognized. The task force work will largely be completed and therefore disqualification will not be required. However, for those cases in which donors are appearing at the time the final report is issued, the task force judges should disclose the circumstances of the donation and their participation on the task force, providing an opportunity for objections.

In conclusion, the task force director and non-judge members may engage in fund-raising for the Judicial Council's task force to examine racial and ethnic fairness in the legal system. The director and members must be cautious in their fund-raising efforts to ensure that judges' names and titles are not used in the fund-raising efforts, except as may be necessary to respond to inquiries.