Opinion 07-46

April 19, 2007

Digest:         A County Court judge who also presides over Surrogate’s matters should not serve on the board of directors of an organization which provides services to mentally and physically challenged persons in the community, where the organization will be engaged in proceedings that ordinarily would come before the judge.

Rules:          22 NYCRR 100.1; 100.4(A)(1); 100.4(C)(3)(i); Opinions 01-64 (Vol. XX); Joint Opinion 00-101 and 00-104 (Vol. XIX).

Opinion:

         A County Court judge who also presides over Surrogate’s matters inquires whether it is proper to serve on a certain committee of a local charitable organization (the “guardianship committee”), in his role as a director on the organization’s board. The inquiring judge explains that the organization provides services to mentally and physically disabled persons in the community, and that the guardianship committee will make recommendations on behalf of disabled persons’ guardianship, including applications for appointment in Surrogate’s Court.

         The Rules Governing Judicial Conduct provide that a judge “shall not serve as an officer, director, trustee or non-legal advisor [of an organization] if it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge.” 22 NYCRR 100.4(C)(3)(i). Applying this provision, this Committee has opined, for instance, that a Family Court judge should not serve on the board of directors of a local advocacy organization which lobbies on behalf of children’s and families’ issues. Opinion 01-64 (Vol. XX). The Committee found it “inappropriate for a judge to serve on the board of directors of a not-for-profit organization where issues championed by that organization are directly related to issues which the judge may well be called upon to address in his or her judicial capacity,” emphasizing that “being perceived as an advocate in view of the high level association with the organization would cast reasonable doubt on the judge's independence and capacity to serve impartially.” Id.; see also 22 NYCRR 100.1; 100.4(A)(1); Joint Opinion 00-101 and 00-104 (Vol. XIX).

         Here, the organization in question is involved in issues which will come before this judge in his/her judicial capacity. Once the guardianship committee is established, it will also appear regularly before the inquirer’s court on guardianship matters. Serving on the board of directors of this particular organization, under these circumstances would be incompatible with the inquirer’s judicial duties and would also cast doubt on the judge’s independence and impartiality. The Committee therefore believes that the judge should not serve on the committee and, furthermore, should resign from the organization’s board of directors.