Joint Opinion 07-39 and 07-48

April 19, 2007

Digest:         (1) The fact that an attorney in a matter before a judge also represents a not-for-profit organization on whose Board of Trustees the judge sits, in a lawsuit before a different judge, does not render the judge disqualified in the matter before him/her. (2) A judge is not required to resign from the Board of Trustees of a not-for-profit where the judge is not required to participate in a pending litigation involving the not-for-profit and where the organization is not regularly engaged in litigation.

Rules:          22 NYCRR 100.3(E)(1); 100.4(C)(3)(a)(i) and (ii); Opinions 06-74; 04-99; 03-13; 99-68 (Vol. XVIII); 98-02 (Vol. XVI); 97-129 (Vol. XVI); 94-06 (Vol. XII); 88-157 (Vol. III).

Opinion:

         A judge serves on the Boards of Trustees of two separate civic and fraternal not-for-profit organizations. Each organization has commenced litigation, one against various building contractors, arising out of the construction of its building a few years earlier, and the other, a local branch of a statewide organization, against its statewide office over title to local assets.

         The judge inquires as to his/her disqualification obligations should the attorneys who represent the builders appear before the judge. The judge states that he/she has disclosed the relationship, and that the attorneys are “willing to waive any possible conflict.” The judge also inquires regarding his/her obligation, if any, to resign from the Boards of Trustees during the pendency of the litigations.

         The Rules Governing Judicial Conduct require that a judge disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In our view, however, the circumstances and relationships described in these inquiries are sufficiently remote so as to prevent the judge’s impartiality from being reasonably questioned. That is, the mere fact that an attorney appearing before the judge represents the organization on which the judge serves, in a lawsuit pending before a different judge, does not, in our opinion, give rise to a perception that the judge’s impartiality might reasonably be questioned. Thus, §100.3(E)(1) does not require that the judge disqualify him/herself from presiding over proceedings involving these attorneys, unless the judge, under the circumstances, doubts his/her impartiality. Opinions 06-74; 04-99; 03-13; 99-68 (Vol. XVIII); 88-157 (Vol. III).

         As to remaining on the Boards of Trustees during the litigation, the Rules Governing Judicial Conduct provide that a judge should not serve in such a capacity if the organization in question is likely to be engaged in proceedings that ordinarily will come before the judge or, regarding full-time judges, if the organization in question is likely to be engaged regularly in adversary proceedings in any court. 22 NYCRR 100.4 (C)(3)(a)(i) and (ii). Under similar circumstances, this Committee determined that a judge should not serve in a leadership capacity in a not-for-profit organization where to do so would require the judge to participate in pending lawsuits, including hearings or trials. Therefore, the judge in this instance should resign from the Boards if it becomes necessary for him to participate in the litigation. Opinions 98-02 (Vol. XVI); 94-06 (Vol. XII). Where, however, there is no indication that either organization will be engaged regularly in litigation or that the judge will be required to participate in the litigation, the judge need not resign from the Boards of Trustees during the pendency of the litigation.