Opinion 10-91

June 10, 2010

Digest:         A full-time judge who also has administrative responsibilities may serve on a state-sponsored justice advisory group that develops state-wide policies in a certain area of the law and may review and vote on requests for federal funds from both government and non-government entities, that will collaborate with the New York State court system in carrying out their activities, as well as proposals that New York State Court System representatives submit to the group.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(a); 100.(4)(C)(3)(b)(I); 100.4(C)(3)(b)(iii); Opinion 97-14 (Vol. XV); 91-78 (VII).

Opinion:

         A full-time judge who also fulfills administrative responsibilities asks whether he/she may serve as a member of a state-sponsored advisory group (hereinafter “group”) that develops state-wide policies in a certain area of the law. As a group member, the judge will review and vote on requests for federal funds from both government and non-government entities that will implement the group’s policies. The judge notes that all of these entities will collaborate with the New York State Court System (hereinafter “Court System”) in carrying out their activities. In addition, the judge will review and vote on proposals that Court System representatives submit to the group.

         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]). A judge is permitted to accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]).

         Because the group develops policy affecting the law, the group’s activities clearly concern the improvement of the law, the legal system or the administration of justice. Therefore, it is permissible for the judge to serve as a member (see 22 NYCRR 100.4[C][2]). Furthermore, there is no impropriety in the judge participating with other group members to review and vote on funding requests from both government and non-government entities that will collaborate with the Court System to implement the group’s policies, even if a proposal comes from a Court System representative.

          In most cases, a group that seeks to develop and implement policies concerning a particular area of the law must, by necessity, work with the Court System to accomplish its goals. Therefore, the perspective and input of a judge who has expertise in an area of the law as well as administrative responsibilities with the Court System ensures that its interests are recognized and served. That the inquiring judge is involved in this particular group does not afford the group, the organizations seeking funds from the group, or the court system any inappropriate benefit.

         In an analogous situation, a judge who is a member of a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization is permitted to participate in the management and investment of the organization’s funds (see 22 NYCRR 100.4[C][3][b][I]) and may make recommendations to public or private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]; Opinion 97-14 [Vol. XV] [full-time judge may be a member of a county bar association committee which makes recommendations to the bar association regarding proposed grants from a county bar foundation for the purpose of enhancing pro bono legal services in the county]); 91-78 [Vol. VII][full-time judge ethically may serve on the IOLA Fund board which administers a fund to assist in providing legal services to the poor, although there may be legal constraints to so serving]). The activities this inquirer proposes are similar and, therefore, permissible.