The Participation Rule

Judges, Civic Groups, and Fundraising

The Participation Rule

Rule 3.7(A) of the Model Rules of Judicial Conduct starts from permission, not prohibition. It allows a judge to participate in activities sponsored by two families of organization.¹ The first family covers organizations or governmental entities concerned with the law, the legal system, or the administration of justice. The second covers educational, religious, charitable, fraternal, or civic organizations that are not conducted for profit.² Every restriction later in this chapter works as a condition on that starting permission.

The second family turns on one phrase, "not conducted for profit." A for-profit business ordinarily falls outside it, so the permission gives a judge no footing for joining that business's activities. Whether such an activity is proper at all must be settled somewhere else, if it can be settled in the judge's favor.

The rule's opening words, "Subject to the requirements of Rule 3.1," make the general limits on extrajudicial activity limits on this permission too.³ The next section develops those limits, including coercive appearance and the undermining of impartiality. A qualifying sponsor opens the door, but the general limits decide whether the judge may walk through it.

The rule introduces its list of activities with the words "including but not limited to the following activities." The list therefore illustrates the permission and does not exhaust it.⁴ A judge may take part in an unlisted activity of a qualifying organization if the activity clears the general limits. Some listed activities carry conditions of their own, and one condition separates the sponsors sharply. A judge may appear or speak at, receive an award or other recognition at, be featured on the program of, and permit the judge's title to be used in connection with an event of a qualifying organization. If the event serves a fund-raising purpose, however, the judge may participate only if the event concerns the law, the legal system, or the administration of justice.⁵ A legal aid society's fundraising dinner meets that test, while a fundraising gala for a hospital does not, even though both sponsors are nonprofit.

Students often assume that a worthy cause makes an activity safe, and that instinct costs points. A charitable purpose answers only one question: which family the sponsor belongs to. It says nothing about the conditions that apply once the judge is inside that family.

Because the permission has a doorway and conditions behind it, a problem about a judge's civic or charitable activity is best run in a fixed order. That order keeps the sponsor question separate from the conduct questions.

Step three is where the two families diverge most, and it organizes the rest of the chapter. The chapter takes up the general limits on participation, then leadership roles and litigation, then the fundraising restrictions, then the encouragement of pro bono service, and finally a comparison with fundraising for a judge's own election campaign.