Opinion 19-122

October 24, 2019

Digest:         A full-time judge may not serve as a board member or non-legal advisor of a not-for-profit organization that receives court appointments and provides guardianship services and attorney representation.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); Opinions 15-201; 07-81; 07-74; 98-35; 88-145; 88-77.

Opinion:

         A full-time judge asks if he/she may serve on the board of a not-for-profit organization which provides guardianship services for those under its care.¹ The organization “employs attorneys, social workers, and financial and property managers” to handle matters for “a vulnerable, mostly indigent population–-elderly and disabled individuals who lack family or other supports than enable them to live as independently as possible.” At times, the organization serves as court-appointed guardian, “pursuant to Article 81 of the New York Mental Hygiene Law.” Its clients may face issues such as dementia, serious medical problems, pending evictions, elder abuse, or involuntary institutionalization. As a board member, the judge would “offer strategic guidance to the organization” as it undergoes a structural transition.

         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’s extra-judicial activities must be compatible with judicial office and must 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]). A full-time judge may not serve as an officer, director, trustee or non-legal advisor of a charitable or civic organization “if it is likely” the organization (i) “will be engaged in proceedings that ordinarily would come before the judge” or (ii) “will be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]).²

         Where consistent with the Rules, judges may serve as officers, directors, or non-legal advisors of health-related not-for-profit charities to which their court does not make referrals (see e.g. Opinions 98-35 [neighborhood health center]; 07-81 [charity which provides residences, mental health services, and medical services to orphans, foster children, and adults with disabilities and which involved “no circumstances under which the County Court and this organization could interact”]; 15-201 [advisory board of a community action organization which educates and assists addicts and their families]).

         However, a full-time judge may not serve if the entity “will [likely] be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]). For example, a full-time judge may not serve on the board of directors of the Prisoners’ Legal Services of New York because it was regularly engaged in legal proceedings, although rarely in New York City Civil Court or Family Court (see Opinion 88-77; see also e.g. Opinion 88-145 [county court judge may not serve on board of directors of society for prevention of cruelty to children since social workers and law guardians assigned by the society were likely to appear in family court]). We have also said a full-time judge must not serve on the board of a charity that “provides bail assistance and advocacy for inmates, ... where the clients of the organization and/or the organization itself may regularly appear in the judge’s court” (Opinion 07-74).

         Here, considering the nature of the organization’s services, including guardianship and attorney representation in court proceedings, we conclude the organization is “regularly engaged in adversary proceedings” within the meaning of Section 100.4(C)(3)(a)(ii). Thus, the judge may not serve on the organization’s board or otherwise serve as an officer, director, or non-legal advisor.

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¹ The Guardianship Project is currently “emerging from under the ... umbrella” of another not-for-profit entity.

² Full-time judges must comply with both subsections; part-time judges need only comply with the first.