Opinion 07-184

December 6, 2007

Digest:         A full-time judge may not serve on a Bar Association Professional Performance Committee that reviews allegations of attorney misconduct, makes findings concerning such allegations, and transmits such findings to the judicial department’s grievance committee for further review.

Rules:          22NYCRR 100.4 (C)(3); 100.4(F); Opinions 04-21; 02-84.

Opinion:

         A full-time judge asks whether he/she may serve on the Professional Performance Committee of a county bar association. According to the judge’s inquiry, “attorney-investigators . . . review and develop facts, give them weight and upon conclusion of this informal inquiry . . . make recommendations to the full committee whose confidential vote is what determines the committee’s finding of either failure or no failure of professional performance.” The Committee thereafter transmits its finding to the judicial department’s grievance committee for further review.

         Pursuant to the Rules Governing Judicial Conduct, a judge may be a member or serve as an officer, director or trustee of an organization devoted to the law, the legal system or the administration of justice, or of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit, but not as a legal advisor to such an organization (see 22 NYCRR 100.4 [C][3]). Further, a judge may not, however, perform judicial functions in a private capacity unless expressly authorized by law (see 22 NYCRR 100.4[F]).

         In Opinion 02-84, the Committee advised that a judge may co-chair a professional ethics committee of a local bar association that advises attorneys with respect to any ethics question they may ask. In Opinion 04-21, however, the Committee concluded that a judge is prohibited by section 100.4(F) of the Rules Governing Judicial Conduct from participating on a bar association grievance committee that passes on allegations of attorney misconduct, including holding hearings and making recommendations to a judicial department grievance committee.

         Not unlike the committee in Opinion 04-21, the committee in the present inquiry finds facts and determines whether to refer allegations of an attorney’s misconduct to the judicial department’s disciplinary committee for further investigation or action. This responsibility is judicial in nature and undertaken by a private entity. Therefore, the judge may not participate (see 22 NYCRR 100.4[F]).