Opinion 03-129

January 29, 2004

Digest:         (1) The inquiring judge may continue to serve as an officer, director, trustee or non-legal advisor of a religious organization and may advise the organization on the planning of events and other non-legal matters, but may not be actively involved in fund-raising, nor permit the judge’s name to be used for fund-raising purposes. (2) The judge may serve as master of ceremonies at a sponsored breakfast as long as no fund-raising will take place, the price of the breakfast does not have a fund-raising premium and the judge’s name is not used in the solicitation of ads for the journal, but should have another individual at the breakfast, rather than the judge, introduce public officials who are actively engaged in campaigns for election to public office. (3) Under the circumstances, a judge may continue to serve as president of a local synagogue, and deposit membership dues from the congregation into the congregation’s bank account, and may oversee appropriate disbursements from the account. (4) A judge may, without compensation, give informal legal advice to a member of the judge’s family in a non-lawyer-client context, but the preparation of wills is prohibited in any circumstances. (5) A Supreme Court justice may not continue to serve as a Notary Public and therefore may not notarize documents on behalf of relatives, neighbors or friends.

Rules:          New York State Constitution, Article 6, §20; Real Property Law 298, CPLR 2309(a); CPLR 3113; People v. Rathbone, 145 N.Y. 434 (1895); People v. Wadhams; 176 N.Y.9 (1903); Matter of Patterson v. Department of State, 35 A.D. 2d 616 (3^rd Dept. 1970); People v. Olensky, 91 Misc.2d 225 (Sup. Ct. Queens Co., 1977). 22 NYCRR 100.4(C)(3)(b)(1); Opinions 96-122 (Vol. XV); 94-147 (Vol. XIII); 96-121 (Vol. XV); 95-10 (Vol. XIII); 90-142 (Vol. VI); 88-07 (Vol. I).

Opinion:

         A Supreme Court justice makes several inquiries regarding membership and service in a local Jewish Council and the propriety of drafting wills and notarizing documents. The justice states that the Council serves as an “umbrella” group made up of local synagogues, parochial schools, and fraternal organizations and relies on grants to cover the costs of its operations. The judge is a founder and until recently, served on a three-person presidium that runs the Council.

         Specifically, the judge would like to continue to serve as master of ceremonies at the Council’s annual breakfast, including introducing several local, state, and federal public office-holders. Although there is no fund-raising at the breakfast and the cost of a ticket covers expenses only the cost of the breakfast, there is a fund-raising journal published in connection with the breakfast.

         The judge also wishes to continue as president of a small synagogue that meets in the judge’s home. The synagogue has a small bank account which is the repository of the annual $25.00 dues paid by each congregant.

         The judge also inquires regarding the propriety of preparing wills and notarizing papers on a pro-bono basis for his relatives and immediate neighbors.

         The judge may continue to serve as an officer, director, trustee or non-legal advisor of a religious organization, and may advise the organization on the planning of events and other non-legal matters, but may not be actively involved in fund-raising, nor permit the judge’s name to be used for fund-raising purposes. 22 NYCRR 100.4(C)(3)(b)(1); Opinions 96-122 (Vol. XV); 96-121 (Vol. XV); 95-10 (Vol. XIII); 88-07 (Vol. I). The judge may serve as master of ceremonies at the breakfast sponsored by a religious Council as long as no fund-raising takes place at the breakfast, the price of the breakfast does not have a fund-raising premium, and neither the judge nor the judge’s name is used to solicit funds or in the solicitation of ads for the associated journal. Opinions 96-122 (Vol. XV); 94-147 (Vol. XIII). If an invited speaker is then engaged as an announced candidate for election or re-election to political office, this Committee advises that someone other than the judge introduce that public official/candidate.

         The judge may also continue to serve as president of a local synagogue, deposit membership dues from the congregation into the congregation’s bank account, and oversee appropriate disbursements from the account.

         A full-time judge is prohibited from practicing law. Although he/she may give informal, uncompensated legal advice to family members (an activity which requires caution and discretion), the preparation of wills goes beyond mere advice to a family member, and falls within the practice of law prohibited by 22 NYCRR 100.4(G).

         As to the Notary Public question, although Supreme Court justices in New York State have statutory authority to take oaths and acknowledgments (Real Property Law 298, CPLR 2309(a) and CPLR 3113), the New York State Constitution prohibits Supreme Court justices from holding another public office or public trust. Article 6, §20. In Opinion 90-142 (Vol. VI), the Committee pointed to the constitutional provision, but declined to voice an opinion as to whether being a Notary Public constitutes the holding of a public office. Upon further review of the question we now conclude that a Notary Public does, indeed, hold a public office. In People v. Rathbone, 145 N.Y. 434 (1895), the Court of Appeals held that the “very designation of ‘notary public’ indicates a relation which the incumbent of the office sustains to the body politic. It is impossible to regard him as other than a public officer. . .” 145 N.Y. at 437. Accord, People v. Wadhams, 176 N.Y.9 (1903); Matter of Patterson v. Department of State, 35 A.D.2d 616 (3d Dept. 1970); People v. Olensky, 91 Misc.2d 225 (Sup. Ct. Queens Co., 1977). This Opinion therefore answers the question left open in Opinion 90-142 (Vol. VI). For although (as noted in Opinion 90-142 [Vol. VI]), there is nothing intrinsically unethical in serving as a Notary Public in light of the authority otherwise given to judges to take oaths, etc., the constitutional provision must, of course, prevail.

         Accordingly, a Supreme Court justice may not hold the public office of Notary Public and therefore the inquirer may not, as such, notarize documents on behalf of relatives, neighbors or friends.