Opinion 15-25

January 29, 2015

Digest:         Under these circumstances, a Family Court judge may permit his/her court attorney to serve on the board of directors of a not-for-profit organization which provides certain services to low-income residents in the region.

Rules:          22 NYCRR pt 100, Preamble; 100.2; 100.2(A); 100.3(C)(2); 100.4(C)(3)(a)(i); Opinions 12-46; 09-127; 98-143; 97-139.

Opinion:

         A Family Court judge asks if his/her court attorney may be a board member of a not-for-profit entity which serves low-income residents in a multi-county region. The judge says some parties who appear before the judge “are recipients of [the organization’s] services” through various county government agencies and departments, and the services “may be the result of orders issued in Family Court cases over which I preside.” Moreover, in some custody cases, the judge directs parents to complete the organization’s parent education and awareness program.¹

         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 not serve as an officer, director, trustee or non-legal advisor of an organization if it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]). A judge also must require his/her staff to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

          On these facts, it appears the judge could not be a board member of this social services entity (see 22 NYCRR 100.4[C][3][a][i]; Opinion 12-46 [citing prior opinions]). Because the position of law clerk “is one of ‘particular trust and confidence,’” his/her outside activities “must be evaluated in light of the possible impact they may have on a judge’s obligation to maintain public confidence in the independence and impartiality of the judiciary. Nevertheless, the limitations on the extrajudicial conduct of a judge do not automatically apply” to a judge’s law clerk (Opinion 09-127 [citations omitted]).

         The Committee has advised that a judge may permit his/her law clerk to serve on a board of a not-for-profit entity representing indigent defendants in criminal cases “in venues other than the one where the judge sits” (Opinion 97-139) and on board of a county Legal Aid Society “[w]here it is unlikely that the judge will be called upon to appoint Legal Aid Society lawyers, or that Legal Aid Society lawyers will be appearing before the judge” (Opinion 98-143). Thereafter, if the organization appears in the judge’s court, the judge must disclose and insulate the law clerk (see e.g. Opinion 98-143). By contrast, a judge may not permit his/her law clerk to serve on a board of a social services agency appearing often in the judge’s current court, and is also involved in most cases in a court wherein the judge expects to soon preside, as it would be impractical to insulate the law clerk in all applicable circumstances “without hindering the judge in the performance of his/her judicial duties” (Opinion 12-46).

         Under these circumstances, the Committee concludes the inquiring judge may permit his/her court attorney to serve on the board of the organization. It does not appear that the organization is frequently involved in cases before the inquiring judge. To the contrary, it appears, in most instances, the judge does not even make direct referrals to the organization; instead, parties who are eligible for the organization’s services receive them through appropriate government entities. The only direct referral described in the inquiry is in “some” custody cases, where the judge directs parents to complete the organization’s parent education and awareness program. Under these circumstances, the court attorney’s proposed service on the organization’s board appears likely to hinder the judge’s judicial duties or otherwise create an appearance of impropriety (see e.g. 22 NYCRR 100.2).²

         Finally, if the organization appears before the judge or the organization’s interests come before him/her in more than a de minimis capacity, the judge must generally disclose his/her court attorney’s service on the organization’s board of directors, insulate the court attorney, and disclose the insulation (Opinion 98-143). However, the Committee also notes that the Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR pt 100, Preamble). Perhaps the judge only refers parents to the organization’s education program very late in a nearly completed custody case. If the referral and the organization’s subsequent compliance report occur so late in a custody case that insulating the court attorney would be impractical, the judge need not go through the formality of disclosure and attempting to insulate the court attorney, where this would only serve to delay or disrupt resolution of the case.

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         ¹ The inquiry does not suggest the judge’s court attorney would, through board membership, become personally involved in delivering the entity’s services or training, or in overseeing individual cases.

         ² The Committee takes no position on the application of the Rules Governing the Conduct of Nonjudicial Employees (22 NYCRR pt 50) to the court attorney’s proposed activity. The employee may contact the Office of Court Administration’s Nonjudicial Ethics Helpline at 1-888-28ETHIC for guidance on any Part 50 issues.