Opinion 05-121

December 8, 2005

Digest:         Under the particular circumstances shown, an administrative judge responsible for long-range planning for court reform and the oversight and administering of court restructuring projects, should not give permission to his/her personal appointee who is a project manager involved in such matters, to serve on the board of directors of a legal services provider organization.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A).

Opinion:

         A judge who holds a high-level state-wide administrative position in the Unified Court System asks whether it is permissible for his/her personal appointee to serve as a member of the board of directors of a legal services provider organization. The judge is responsible for long-range planning for court reform and for the direction and oversight of court restructuring projects and specialized courts. The employee is a project manager involved in the planning, development and operations of drug treatment, mental health and sex offender courts. The legal services organization in question is a provider of free legal civil services to eligible low income people.

         As explained by the employee in the material sent to the judge requesting permission, his/her work is based primarily in the criminal courts, but does involve Family Court matters in his/her capacity as project manager for family treatment courts. Should permission to serve on the board of directors be granted, the employee would recuse in all discussions and in voting on any issues relating to the provider’s involvement in Family Court. Further, he/she would also recuse in any matter concerning the organization’s present or possible future involvement in any other project in which the inquirer’s office is involved.

         Under the particular circumstances presented, it is the opinion of the Committee that the employee should not serve on the board of directors of the legal services organization. Those special circumstances involve a consideration of the particular positions occupied both by the inquirer and the employee. The inquiring judge’s role in the court system is clearly on a policy-making level, involving a variety of different courts, and includes strategic planning and the operational restructuring of the courts throughout the State. The employee’s role is in the carrying out and implementation in the courts of the policies that have been developed and which are overseen by the inquirer.

         Under those circumstances, there is an inherent conflict between serving on a board of directors of a legal services organization whose clients’ interests could be affected by the policies and decisions developed and overseen by the inquiring judge’s office and the employee’s performance of his/her duties in the carrying out and implementation of those policies and decisions. From the standpoint of public perception, recusal by the employee from any involvement in the work of the board where there is the possibility of conflict does not suffice, in our view, to eliminate the conflict.

         This is not a situation where a trial judge’s law clerk could be insulated from involvement in specific proceedings before his/her judge. Here, the fact remains that decisions could be made by the board, and indeed, advanced in particular litigations, that challenge or contest the very programs and policies which the inquiring judge is charged with developing and administering. The employee’s membership on the board could thus be perceived as representing approval or acquiescence by the court system itself in the positions espoused by the board, notwithstanding the employee’s internal disassociation from those positions. This could, we believe, draw into question the independence of the judiciary. 22 NYCRR 100.1. For regardless of such disassociation, the employee retains the standing and status of a representative of the court system given his/her duties, or could understandably be perceived as such. Serving in such a dual role under these circumstances could, therefore, erode “public confidence in the integrity and impartiality of the judiciary,” the maintenance of which is a judicial obligation. 22 NYCRR 100.2(A). Accordingly, to assure compliance with that obligation, we advise that permission not be granted to the employee to serve on the board of directors of the legal service organization. 22 NYCRR 100.2.