Question: A judge has asked the Ethics Advisory Committee whether a judge's picture may be used in a national campaign by the American Indian College Fund. The campaign may result in donations to the fund.

Answer: The judge may contribute a picture to the campaign.

Discussion: The requesting judge has been asked by an advertising agency, which is assisting the American Indian College Fund (AICF), to participate in a campaign to raise awareness about the AICF. The AICF, a non-profit organization, is soliciting the participation of Native American individuals from many different professions for an advertising campaign in national magazines. Pictures of the participating individuals will be displayed under a caption that reads: "Have you ever seen a real Indian?" The reader is directed to contact the AICF for more information about the program. There are several stated purposes for the program. First, the program hopes to address stereotypes that the general public may have about Native Americans. Second, the program hopes to offer role models to young Native Americans. Third, the program admittedly hopes that the magazine readers will donate to the AICF. The Committee's focus is on this third purpose.

The fund-raising prohibition in Canon 4C of the Code of Judicial Conduct has typically received a strict interpretation. The Canon states that a judge "shall not personally participate in the solicitation of funds or other fund-raising activities." Ethics advisory opinions from Utah and other states are fairly unanimous in prohibiting direct solicitation, such as through personal contact with potential donors, and indirect solicitation, such as performing at a fund-raising event. See Informal Opinion 89-8. A judge's personal appearance before potential donors, along with explicit or implicit endorsement of fund-raising, is usually a concern.

On the other hand, ethic opinions have approved some limited, incidental involvement in fund-raising. This Committee and other states' committees have allowed the use of a judge's name on letterhead that will be used for fund-raising, as long as the letterhead is not used solely for fund-raising and the judge's title is not used or the judge's name is not selectively emphasized. See Informal Opinion 90-6.

The fact situation that the Committee has been asked to address lies somewhere between direct, personal contact and the incidental contact resulting from a name on letterhead. The judge will not personally appear before any potential donors and potential donors will not appear before the judge. Also, the materials on which the judge will appear do not have fund-raising as their sole purpose. However, it is evident that the judge's title will be used and the judge's image would be emphasized. The Committee must decide whether those facts are fatal to the judge's ability to participate in this campaign.

In resolving this question, the Committee believes that it is important to revisit the purposes of the fund-raising prohibition. The commentary to the ABA Model Code states that "a judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone." The commentary goes on to state that "use of an organization letterhead for fund-raising . . . does not violate Section 4C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation." The drafters of the model code were concerned with direct, personal solicitation. The drafters were also concerned with selective emphasis of a judge's title. The Committee believes that the campaign at issue does not infringe on either of those concerns. The judge is not directing communications at a captive or specifically targeted audience. The campaign itself is not conducted solely for fund-raising purposes and does not specifically request donations. Furthermore, although the judge's title will be used, all of the individuals involved in the campaign (doctors, college professors, etc.) will also have their titles used. The judge is one of many individuals in the campaign and the judge will not receive selective emphasis in relation to those individuals.

The Indiana Commission on Judicial Qualifications stated that "the restrictions in Canon 4 on judicial participation in fund-raising activities are meant to address 'the dual fears that potential donors either may be intimidated into making contributions when solicited by a judge, or that they may expect future favors in return for their largesse'" (citing Shamen, Lubet and Alfini, Judicial Conduct and Ethics, 2 ed., page 289). The "dual fears" addressed by Canon 4 are not evident in this particular situation.

It is again important to note that this is not solely a fund-raising campaign. Potential donors are not being specifically targeted and they are not receiving a direct solicitation. The materials will be included in national magazines and the potential donors will not have any direct or indirect contact with the judge or any AICF representatives. Furthermore, the participating judge will not have any information on donors or others who may respond to the campaign. Therefore, there is not a concern about any quid pro quo expectations. The judge may therefore contribute to the AICF's public relations campaign.