Opinion No. 97-14

July 9, 1997

TOPIC: Formation of a legal defense fund on behalf of a judge.

DIGEST: A defense fund may be established for a judge charged with a criminal offense but must be established with caution. Lawyers may contribute to the fund so long as they have not practiced, and are unlikely to practice, before the judge. Judges may contribute to the fund if their interests have not and are unlikely to come before the judge. The name of the judge, for whom the fund is created, may be used in fundraising activities that solely benefit the judge, but may not be used in joint fundraising activities with co- defendants.

REFERENCES: Illinois Supreme Court Rules 62, 65C and 68; ABA Model Code of Judicial Conduct (1990), Canon 4D(5)(h) (1990) and accompanying commentary; Opinion 96-33, New York Advisory Committee on Judicial Ethics, (June 13, 1986); Opinion 85-12, Florida Committee on Standards of Judicial Conduct, (August 22, 1985); and Opinion 33, California Committee on Judicial Ethics, (August 13, 1986).

FACTS

A judge and several other individuals are charged with a criminal offense. The co-defendants are not judges. Community members including judges, lawyers, and lay persons wish to establish, and contribute to, a defense fund for the judge. The funds will be used to pay the judge's attorney fees. The organizers are planning a fundraising dinner.

QUESTIONS

1. May a defense fund be established for a judge charged with a criminal offense?

2. Who can contribute to the judicial defense fund?

3. May the name of the judge be used in connection with the fundraising dinner?

OPINIONS

Question 1

Contributions to a judicial defense fund constitute gifts to a judge. Therefore, a judge's ability to accept contributions to a defense fund is controlled by Illinois Supreme Court Rule 65C(4) which governs the acceptance of gifts by a judge. Rule 65C(4) does not specifically prohibit the acceptance of gifts for the purpose of defraying legal expenses. In fact, Rule 65C(4)(c) provides that:

4. Neither a judge nor a member of the judge's family residing in the judge's household should accept a gift, bequest, favor, or loan from anyone except as follows: (c) a judge or a member of the judge's family residing in the judge's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before the judge, including lawyers who practice or have practiced before the judge. (emphasis added).

So, while Rule 65C(4)(c) severely limits who may contribute to a defense fund, neither Rule 65 nor any other provision of the Illinois Code of Judicial Conduct ("Illinois Code") prohibits the acceptance of contributions or gifts earmarked for paying a judge's legal expenses. This conclusion is supported by the opinions of other judicial ethics advisory bodies which have found no ethical prohibition against establishing a judicial defense fund. See New York Advisory Committee on Judicial Ethics, Opinion 96-33 (June 13, 1996) (permissible for judge facing judicial misconduct charges brought by state, judicial disciplinary agency to allow formation of a legal defense fund in his behalf); Florida Committee on Standards of Judicial Conduct, Opinion 85-12 (August 22, 1985); California Committee on Judicial Ethics, Opinion 33 (August 13, 1986) (judge may accept contributions for defense before the Commission on Judicial Performance).

Question 2

As previously noted, Rule 65C(4)(c), prohibits a judge from accepting gifts from certain individuals. Rule 65C(4)(c) permits a judge to accept a gift "only if the donor is not a party or other person whose interests have come or are likely to come before the judge including lawyers who practice or have practiced before the judge." This provision prohibits lawyers from contributing to a defense fund if they have practiced, are practicing, or are likely to practice in front of the judge. Non-lawyers, including litigants, are also enjoined from contributing if they have had, or are likely to have, their interests come before the judge. See 1990 ABA Model Code of Judicial Conduct, Commentary to Canon 4D(5)(h) interpreting a slightly different gift prohibition ("Section 4D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the client's interests have come or are likely to come before the judge.")

A judge may contribute to another judge's defense fund so long as the donor-judge's interests have not and are not likely to come before the donee-judge. A serious question arises as to the propriety of a contribution by an associate judge to a circuit judge in the same judicial circuit as the associate judge's "interest in reappointment" will come before the circuit judge every four years. Of course, a judge may not solicit funds for another judge's defense fund, because to do so would necessarily cause the soliciting judge to lend the prestige of office to advance the private interests of another judge. See Rule 62B. For this same reason a judge may not permit his or her name to be used in fundraising or solicitation activities for another judge.

Other provisions of the Illinois Code also affect a judge's ability to accept donations to a defense fund. For example, a gift may not be accepted, even if its acceptance does not violate Rule 65C(4)(c), if the gift creates an actual impropriety or the appearance of impropriety in violation of Rule 62. Likewise, under Rule 62, a defense fund contribution must be refused if its acceptance gives the impression that the donor is in a special position to influence the judge.

Question 3

The judge's name may be used in publicizing the fundraising dinner as long as the dinner proceeds only benefit the judge. A judge cannot endorse or participate in a joint benefit including other defendants because by doing so, the judge would lend the prestige of judicial office to the private interests of the co-defendants. See Rule 62B.

CONCLUSION

While permitted by the Illinois Code, establishing and managing a judicial defense fund is a complicated and difficult matter. Among other things, the judge who is the beneficiary of the fund, is ultimately responsible for:

1. Identifying attorneys who have or are likely to practice before the judge and declining contributions from them;

2. Determining which prospective donors have been litigants before the judge and declining contributions from them;

3. Determining who has an interest which may come before the judge and declining contributions from those individuals or organizations;

4. Declaring all contributions in excess of $100.00, pursuant to Rule 68; and

5. Determining how to disburse any excess funds.

This list of responsibilities is certainly not exhaustive but only representative of the concerns a judge must have when establishing, or permitting others to establish, a defense fund on the judge's behalf. Establishing a judicial defense fund must be undertaken with caution and with a commitment to devote the time and resources necessary to ensure that the fund is created and maintained within the parameters of the Illinois Code.