Opinion 09-236

January 27-28, 2010

Digest:         A judge who is a member of an advisory board to a university law school must disqualify him/herself, subject to remittal, when either the law school or the university is a party in the judge’s court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(d)(ii); 100.3(F); 100.4(A)(1) - (3); 100.4(C)(3); Opinion 07-164; 02-63; 94-63 (Vol. XII); 90-32 (Vol. V).

Opinion:

         The inquiring judge is a member of an advisory board to a law school that is sponsored by a university. The judge advises that the advisory board has no governing power, but the members meet with the law school dean twice each year to discuss matters of interest to the law school. According to the judge, the advisory board has committees dealing with such subjects as development, admissions and “student and academic affairs.” The judge states that he/she will have no involvement with the development committee. The judge asks whether he/she must disqualify him/herself when the university that sponsors the law school is a party in the judge's court.

          A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Judges may nonetheless participate in extra-judicial activities, including serving on the board of an educational organization not conducted for profit, as long as such participation is not incompatible with judicial office and does not cast reasonable doubt on the judge's capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[C][3]). However, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), subject to remittal (see 22 NYCRR 100.3[F]).

         The Committee previously has advised that a judge may serve as a director, trustee or non-legal advisor of an educational organization (see Opinions 07-164 [advisory panel for community college paralegal program]; 02-63 [advisory panel for public school of law and finance]; 90-32 [Vol. V] [trustee of community college]). However, a judge must disqualify him/herself in a proceeding in which the judge is an officer, director, or trustee of a party (see 22 NYCRR 100.3[E][1][d][ii]; 94-63 [Vol. XII]; 90-32 [Vol. V]).

         Although the inquiring judge is not an officer, director, or trustee of the university that sponsors the law school, but instead serves on an advisory board to the law school, the judge must disqualify him/herself not only when the law school is a party, but when the university itself is a party as well (see Opinion 07-164). In the Committee’s view, a university and an academic unit thereof are so integrally related that the judge’s impartiality might reasonably be questioned should he/she preside in a case involving only the university (see 22 NYCRR 100.3[E][1]). However, in such circumstances, remittal of disqualification is possible (see 22 NYCRR 100.3[F]).