Opinion 11-122

October 27, 2011

Digest:         A full-time judge may appoint court staffers or other qualified persons to a standing advisory committee for a Unified Court System’s Office of Alternative Dispute Resolution and Court Improvement Program mediation program.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); Opinions 07-161; 00-50 (Vol. XIX); 93-30 (Vol. XI); 90-19 (Vol. V).

Opinion:

         A full-time judge asks whether he/she may appoint individuals, including court staffers, to serve on an advisory committee for a pilot mediation program that is sponsored by the Unified Court System’s Office of Alternative Dispute Resolution and Court Improvement Program for cases heard in the judge’s court.

         According to information the judge provided:

The advisory committee is a group of up to 5 people including mediators, court staff, a[n] attorney [who practices in the relevant field of law] (4 members for the first year) and after a year, a client who has participated in the program. The group will include the executive director of the Mediation Center, the program manager, and others appointed by the [Court’s] judge. The Committee will advise, assist, support and advocate, as well as assist in on-going evaluation of the [Court’s] Mediation Program.

         Such information further indicates that the committee will advise in the following areas:

●Assess each area of the program and offer suggestions on ways to improve aspects of the program,

●Promote the program in the community including arranging for presentations and publicity,

●Consult on cases in a general way to insure the quality of services provided while maintaining confidentiality,

●Support the relationship with the [relevant] Bar.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do 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 and are not incompatible with judicial office, including serving as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[A][1]-[3]; 100.4[C][3]).

         The Committee has previously advised that where a judge does not refer cases to a community mediation project, the judge may serve on the project’s board, as long as the judge is not involved in any of the disputes and does not receive any compensation for such service (see Opinion 93-30 [Vol. XI]). The Committee also has previously advised that a judge may serve on the advisory board of a youth court program, provided that the judge’s court is not one from which referrals are made to the youth court and the judge does not engage in fund-raising on behalf of the program (see Opinion 00-50 [Vol. XIX]). A judge may also serve as a voluntary and unpaid member of an advisory board of a not-for-profit community mediation center, which is “mainly” funded by the Unified Court System (see Opinion 90-19 [Vol. V], modified by Opinion 07-161), provided that the judge does not refer cases to the center (see Opinion 07-161).

         The Committee assumes that the inquiring judge will refer cases to the mediation program. However, unlike those inquirers who sought to serve on similar mediation program boards or advisory committees, the inquiring judge seeks only to appoint members to an advisory committee that an official center of the New York State Unified Court System’s Office of Alternative Dispute Resolution and Court Improvement Programs has established as the first step towards implementing a pilot mediation program. And, neither the judge nor the judge’s appointees on the advisory committee will be involved in mediating any individual cases that the judge might later refer to the program.

         Therefore, the Committee believes that the inquiring judge’s limited participation in this initial stage of establishing the Unified Court System-sponsored pilot mediation program is a permissible activity involving the improvement of the law, the legal system and the administration of justice (see 22 NYCRR 100.4[C][3]). Consequently, the Committee concludes that making such appointments will not cast reasonable doubt on the judge’s capacity to act impartially as a judge or interfere with the proper performance of the judge’s judicial duties and is not incompatible with judicial office (see 22 NYCRR 100.4[A][1], [3]). However, once the judge makes such appointments, to avoid even an appearance of impropriety (see 22 NYCRR 100.2), the judge must have no further involvement with the mediation program or the advisory committee for the program other than to refer cases to the program.

         The judge also asks whether he/she can appoint court staffers to serve on the advisory committee. In the Committee’s view this is ethically permissible for the reasons stated above, as long as the judge insulates any staff member who serves on the advisory committee from any case that has been referred to the mediation program and thereafter returned to the court for any reason.