Opinion 07-02

January 25, 2007

Digest:         A Family Court Judge should not serve on the board of directors of a non-profit organization that provides therapeutic visitation services to parents who may be referred to the agency, directly or indirectly, by the Family Court.

Rules:          22 NYCRR 100.2; 100.4(A)(1), (3); 100.4(c)(3)(b)(iv); Opinions 02-91; 99-64 (Vol. XVIII); 98-10 (Vol. XVI); 91-43 (Vol. VIII); 88-130 (Vol. III).

Opinion:

         A Family Court Judge inquires about the propriety of serving on the board of directors of a non-profit center which provides mental health services to children and families in need, including therapeutic visitation services required by the Family or Supreme Courts.

         One of the dispositional options available to the judge in deciding Family Court custody, visitation, child protection and other matters is to require some parents to visit their children with a mental health professional present. The organization herein is likely to provide such visitation services to people who are directly or indirectly referred by the Family Court Judge. Also, some employees of this organization are likely to be involved in proceedings in the Family Court in which the judge serves.

         Section 100.4(c)(3)(a) of the Rules Governing Judicial Conduct states that “a judge may be a member, or serve as an officer, director, trustee or non-legal advisor of an...educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit,” subject to certain limitations. 22 NYCRR 100.4(c)(3)(a). The Rules also require a judge to “avoid impropriety and the appearance of impropriety in all of the judge’s activities.” 22 NYCRR 100.2(A). Further, a judge must also refrain from activities that cast reasonable doubt on the judge’s capacity to act impartially and which interfere with the proper performance of judicial duties. 22 NYCRR 100.4(A)(1) and (3).

         Even if the inquiring judge does not designate the specific organization to supervise the visitation in a given case, the judge does make the initial determination that such service is necessary and, perhaps further, that the litigant should be required to pay the organization for its service. In so doing there is created the possibility of a placement at, and payments to, the agency on whose board the judge would be serving. This combination of circumstances, in our opinion, creates a conflict or at least the appearance of a potential conflict between the judge’s adjudicative duties and his/her role as a board member. Opinions 02-91; 99-64 (Vol. XVIII); 98-10 (Vol. XVI); 91-43 (Vol. VIII); 88-130 (Vol. III). In the Committee’s opinion, the judge should not serve on this organization’s board of directors.