Opinion 20-174

December 10, 2020

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge (1) may not serve as power of attorney for an elderly former client, unless the judge maintained a “longstanding personal relationship of trust and confidence” with them and obtains written permission from the Chief Administrative Judge; (2) may not chair certain local hospital entities, where their only function is fund-raising; (3) may serve as a trustee of private not-for-profit foundations which make grants to other not-for-profit organizations and accept a nominal annual director’s fee, subject to the limitations on compensation for permissible extra-judicial activities; and (4) may serve as a compensated trustee of a not-for-profit cemetery association that oversees the cemetery’s endowment and makes expenditures to maintain the cemetery, subject to the limitations on compensation for permissible extra-judicial activities.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.2(D); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.4(D)(3); 100.4(E)(1); 100.4(H)(1)-(2); Opinions 20-47; 20-46; 18-180; 17-154; 11-125; 11-117; 09-170; 05-144.

Opinion:

         A new full-time judge asks about several extra-judicial activities, which we will discuss and address below.

         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 generally engage in extrajudicial activities if they do not cast reasonable doubt on the judge’s ability to act impartially; do not detract from the dignity of judicial office; and do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge may “hold[] membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]). A judge generally may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit, provided the organization is unlikely to be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]) and, in the case of a full-time judge, is also unlikely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]). A judge may assist a not-for-profit charitable organization in planning fund-raising events and may participate in the management and investment of the organization’s funds but must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). Furthermore, a judge may not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]), including charitable fund-raising (see 22 NYCRR 100.4[C][3][b][iv]). Ordinarily, a full-time judge must not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, designated by an instrument executed after January 1, 1974, for the estate, trust or person of a non-relative (see 22 NYCRR 100.4[E][1]). However, with the approval of the Chief Administrative Judge, a full-time judge may so serve for a person “with whom the judge has maintained a longstanding personal relationship of trust and confidence, and then only if such services will not interfere with the proper performance of judicial duties” (id.).

Question 1. May a full-time judge continue serving as power of attorney to an elderly former client?

         The judge has served as power of attorney for an elderly former client with limited income and assets and asks if it is permissible to continue to do so in order to collect the client’s mail, organize her finances and pay her bills.

         We have advised that a full-time judge may not serve as an alternate trustee of the estate of a long-time family acquaintance, unless the judge maintained a “longstanding personal relationship of trust and confidence” and obtains the Chief Administrative Judge’s approval (Opinion 18-180; 22 NYCRR 100.4[E][1]; see also Opinions 11-117 [new full-time judge must resign as co-trustee of a testamentary trust of a former client]; 11-125 [defining “close personal relationship” as one where the judge and the attorney share intimate aspects of their personal lives and providing examples of same]).

         Consistent with these principles, we conclude this judge likewise may not continue to serve as power of attorney for an elderly former client, unless the judge establishes a “longstanding personal relationship of trust and confidence” between them and obtains written permission from the Chief Administrative Judge, in accordance with Section 100.4(E)(1) of the Rules Governing Judicial Conduct.

Question 2. May a full-time judge continue to chair a local hospital fund-raising organization or otherwise serve on its board of directors?

         The judge currently serves, without compensation, on the boards of two local hospital fund-raising organizations (in one instance, serving as chair). The judge asks if it is permissible to continue.

         In Opinion 20-46, we advised that a judge may not serve on the board of a not-for-profit entity whose sole purpose is to raise funds for a foreign educational institution. We have also advised that a judge may not serve on a board created to establish a memorial college scholarship fund, where the board’s sole purpose is to raise money for the scholarship (see Opinion 05-144).

         Here, as both entities’ sole purpose appears to be fund-raising, we likewise conclude that the inquiring judge may not serve on either board.

Question 3. May a full-time judge continue to serve as a trustee of two private foundations, “which make grants to local 501-c-3 organizations” and accept a nominal annual director’s fee?

         The judge asks if he/she may continue to serve as a trustee of two private not-for-profit foundations, which make grants to other not-for-profit organizations. The judge would also like to continue accepting the “nominal annual director’s fee.”

         In Opinion 20-47, we advised that a full-time judge may serve on the board of a not-for-profit arts foundation that reviews grant applications and awards grants to promote performing arts, as long as the judge refrains from any aspect of fund-raising and does not offer legal advice (see id.). We emphasized that the entity must not be regularly engaged in adversarial proceedings in any court or in any proceeding that would ordinarily come before the judge (see id.).

         Here, too, we conclude that the inquiring judge may continue to serve as a trustee of not-for-profit private foundations which make grants to other local not-for-profit entities, subject to the same limitations. The judge may also accept a nominal annual director’s fee, subject to the limitations on compensation for permissible extra-judicial activities in Section 100.4(H)(1)-(2) of the Rules Governing Judicial Conduct.

Question 4.  May a full-time judge continue to serve, in a paid position, as a trustee of a not-for-profit cemetery association?

         The judge asks if he/she may continue to serve as a trustee of a cemetery association that “oversees the [c]emetery’s endowment and makes expenditures to maintain the cemetery.” It is a paid position.

         While a full-time judge must not serve as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity (see 22 NYCRR 100.4[D][3]), they generally may serve as an officer, director, trustee, or non-legal advisor of a not-for-profit religious, charitable, fraternal, or civic entity, provided the entity is not likely to be regularly engaged in adversarial proceedings in any court or in any proceeding that would ordinarily come before the judge (see 22 NYCRR 100.4[C][3][a][i]-[ii]). As always, the judge must refrain from fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]; [iv]).

         Thus, subject to the same limitations, the inquiring judge may serve as a trustee of a not-for-profit cemetery association that oversees the cemetery’s endowment and makes expenditures to maintain the cemetery (see Opinions 17-154; 09-170).

         With respect to the judge’s characterization of this as a “paid position,” we note that a full-time judge “may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by” Section 100.4, “if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety” (22 NYCRR 100.4[H][1]). This is further subject to several restrictions. As applicable here, we note that “[c]ompensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity” (22 NYCRR 100.4[H][1][a]) and the judge must “report the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation so received” (22 NYCRR 100.4[H][2]). The report must be made “at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves or other office designated by law” (id.).

         Accordingly, we conclude the judge may serve as a trustee of a not-for-profit cemetery association that oversees the cemetery’s endowment and makes expenditures to maintain the cemetery, subject to the limitations on compensation for permissible extra-judicial activities (see 22 NYCRR 100.4[H][1]-[2]).