Opinion 20-45

March 19, 2020

Digest:         A full-time judge may serve on the board of a not-for-profit entity that runs community-based health care facilities, provided it and its affiliated hospital are not likely to be engaged regularly in adversary proceedings in any court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i); 100.4(G); Opinions 04-09; 03-138; 01-72; 00-76; 00-18; 98-35.

Opinion:

         A full-time judge asks if he/she may serve on the board of directors of a not-for-profit entity that is affiliated with a major not-for-profit hospital and runs community-based health care facilities. As the judge presides in criminal matters, neither the not-for-profit entity nor the hospital is likely to appear in the judge’s court.

         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 serve as an officer, director, or non-legal advisor of a civic or charitable 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]).

         We have said a judge may serve on the board of a small not-for-profit hospital (see Opinion 01-72) or a nursing home affiliated with the not-for profit parent corporation of two hospitals (see Opinion 00-18); as a director of a non-profit health center (see Opinion 98-35); and as co-chair of a medical college’s community advisory council (see Opinion 04-09). Thus, there is no inherent ethical bar to service on the board of a not-for profit entity that runs community-based health care facilities.

         Of particular note, in Opinion 00-18, we concluded that a judge who served on the board of a nursing home affiliated with the parent corporation of two hospitals must exercise recusal if the nursing home or either hospital appeared as a party. Here, while this entity and its affiliates are unlikely to be engaged in proceedings that would ordinarily come before the judge, “of possible concern is the potential for the [organization] to be involved in litigation” (Opinion 04-09). In our view, a full-time judge must not serve on the entity’s board if the entity or its affiliated hospital is or becomes “engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]).

         Otherwise, we believe the judge may serve on the board, subject to generally applicable limitations on judicial speech and conduct, including prohibitions on fund-raising (see e.g. 22 NYCRR 100.4[C][3][b][i]) and giving legal advice (see 22 NYCRR 100.4[G]; Opinions 03-138; 00-76).