Receded from in Opinion 98-11
March 31, 1977
Re: Canons 2, 6 and 7B
This is in response to your letter inquiring as to the advisability of establishing a "defense fund". You advise that you have voluntarily stepped down from the Circuit Court bench pending the outcome of criminal charges and that various individuals and attorneys in your Circuit have voluntarily offered financial assistance to defray legal expenses you will incur. You indicate you have not solicited and will not solicit funds from anyone and that, to date, no funds which have been volunteered have been accepted. Your inquiry is:
A. In such a situation, may you, individually, or may your counsel accept unsolicited contributions to a "defense Fund"?
B. If so, what guidelines should be employed, i.e. should contributors remain anonymous?
The majority of the Committee is of the opinion that the "defense fund" which is outlined above is not prohibited by the Code of Judicial Conduct. To the extent that our Opinion 75-9 seems to conflict with this holding, it should be noted that 75-9 distinctly referred to solicited, as opposed to unsolicited defense funds.
The majority of this Committee acknowledges that the difficulty of a legal defense fund is the possible appearance of impropriety. Canon 2B. It should be noted, however, that Canon 7B(2) permits a judge to solicit campaign funds through a committee. It seems inconsistent, therefore, to permit the acceptance of contributions for the purpose of elections, and yet to prohibit contributions for other purposes relating to the judicial office.
It is our opinion that the appearance of impropriety can be obviated if the judge receiving the funds has no means of learning who the contributors were. It is the suggestion of four members of this Committee that such anonymity could be accomplished by contributions being given to an attorney who, in turn, would forward the funds to the judge's defense counsel without divulging the identity of the contribution. Contributory to the defense fund would therefore never be known to the judge and it has been suggested that the attorney-client privilege may prohibit the intermediary attorney form divulging the contributor's identity.
One member of the Committee, while agreeing that a defense fund may be established for the acceptance of unsolicited contributions suggests that a donor contributing less than $100 who does not have interests recently passed or likely to come before the donee judge may donate such funds without the funds having to be reported pursuant to Canon 6. If the value exceeds $100, however, it would be reportable. On the other hand, if an anonymous donor gave in excess of $100, only the amount would have to be reported. Receipt of anonymous donations would minimize any possible conflicts with Canon 2.
One judge is of the view that our Opinion 75-9 prohibits the contribution of defense funds from any attorney practicing before the donee judge. That judge, however, sees no objection to accepting contributions from persons other than practicing lawyers if those persons would not likely be involved in proceedings before the donee judge. Contributions, however, should be reported. Canon 6.
We appreciate your inquiry and trust the foregoing will be of assistance to you.
Tyrie A. Boyer, Chairman
Committee on Standards of Conduct Governing Judges
Participating members: Judges Carlisle, Haverfield, Hewitt, Marger, Murphee,
O'Connell and Sample
Recused : Stephenson.