Opinion 15-201

December 3, 2015

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A full-time judge who presides in a drug treatment court may serve on the advisory board of a not-for-profit community action organization which educates and assists addicts and their families, provided the judge does not give legal advice to or fund-raise for the organization and does not have the opportunity to make referrals to the organization. While serving on the advisory board, the judge is disqualified, subject to remittal, in matters where the organization appears. If such service results in excessive disqualifications, the judge must resign from the advisory board.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(ii); 100.3(F); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.4(G); Opinions 15-151; 12-113; 12-74; 10-187; 10-119; 09-99; 07-81; 99-21.

Opinion:

         A full-time judge who presides over a treatment court and judicial diversion program asks if he/she may serve as an advisory board member of a not-for-profit “community action organization dedicated to raising awareness, and providing education to families and individuals struggling with addiction.” The organization also “promotes awareness about drug use, assists addicted and at-risk individuals and their families, and implements measures, including legislation, that holds accountable organizations and medical institutions that perpetuate drug use through over-prescription of opiates and other drugs.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may participate in extra-judicial activities that are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Although a full-time judge may not practice law (see 22 NYCRR 100.4[G]), he/she may serve as a non-legal advisor to a not-for-profit civic, educational or charitable organization (see 22 NYCRR 100.4[C][3]), subject to certain limitations.

          For example, a judge may not serve as an officer, director, or non-legal advisor to an organization that is likely to “be engaged in proceedings that ordinarily would come before the judge” (see 22 NYCRR 100.4[C][3][a][i]) or, if a full-time judge, “be engaged regularly in adversary proceedings in any court” (see 22 NYCRR 100.4[C][3][a][ii]). A judge may assist a not-for-profit organization in planning fund-raising, but must not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) or permit use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]). A judge also must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including when the judge is an officer, director or trustee of a party to the proceeding (see 22 NYCRR 100.3[E][1][d][ii]) or has an interest that could be substantially affected by the case (see 22 NYCRR 100.3[E][1][c]).

         Communities benefit “from having judges take an active part in community affairs whenever possible” (Opinion 10-119; see also Opinions 12-113; 12-74; 99-21). Thus, a full-time judge who presides in a drug treatment court may serve as a consultant to a not-for-profit organization which educates individuals with addiction issues (see Opinion 10-187), where the program is located in another county and is not an approved provider the judge is empowered to direct drug court participants to attend. The Committee has also advised a judge may serve on the board of a non-profit community action agency which provides assistance programs to low-income individuals and families, subject to certain limitations (see Opinion 10-119).

         Here, too, there is no apparent ethical bar, provided the judge will have no opportunity to make referrals to the organization (see e.g. Opinions 10-187; 10-119; 09-99; 07-81). Accordingly, the inquiring judge may serve on the advisory board so long as the judge does not provide legal advice to the organization (see Opinion 10-187; 22 NYCRR 100.4[G]) or personally participate in fund-raising (see Opinion 10-119; 22 NYCRR 100.4[C][3][b][i]). Moreover, the judge is disqualified, subject to remittal, if the organization appears before the judge (see Opinion 10-119; 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][ii]).¹

         Finally, although the judge may serve on the advisory board subject to these limitations, if such service results in excessive disqualifications, the judge should resign (see 22 NYCRR 100.4[A][3] [extra-judicial activities must not “interfere with the proper performance of judicial duties”]).

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         ¹ Remittal is not permitted if any party is appearing without counsel, if the judge is unwilling or unable to make full disclosure of the basis for disqualification, or if the judge doubts his/her ability to be impartial. Where permitted, remittal is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see e.g. Opinion 15-151 n 1; 22 NYCRR 100.3[F]).