Opinion 20-81(C)

September 10, 2020

Digest:         A part-time judge may not serve on the board of ASISTA.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1), (3); 100.4(C)(3)(a)(i); 100.6(B)(1); Opinions 20-70; 17-70; 14-29; 98-137.

Opinion:

         A part-time judge, who is also a practicing attorney, asks if he/she may serve on the board of ASISTA, “a 501c3 not for profit whose goal is to provide national leadership, advocacy, training, and technical support to enhance access to safety and justice for crime survivors seeking secure immigration status, especially those who have suffered gender-based violence in the United States.” The entity has ongoing litigation in federal courts and provides “case assistance” or “individualized technical help for attorneys” and others representing immigrants. With respect to its policy advocacy activities, the entity’s website says:

ASISTA is a national leader on advocacy on behalf of immigrant survivors of crime and their families.

ASISTA is able to connect individual case problems and identify systemic trends and issues that require policy change. We work at the intersection of the immigration advocacy and domestic violence/sexual assault survivor advocacy communities in order to ensure that immigrant survivors have access to their rights and protections afforded to them under the law.

         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 part-time judge generally may serve as an officer or director of a not-for-profit civic or charitable organization, provided the entity is not likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][I]; 100.6[B][1]) and further provided such service will not cast reasonable doubt on his/her capacity to act impartially as a judge, will not interfere with the proper performance of judicial duties, and is not otherwise incompatible with judicial office (see 22 NYCRR 100.4[A][1], [3]).

         In Opinion 98-137, we considered a judge’s involvement in a civic organization that “advocates and pursues positions in controversial public policy matters,” and concluded the judge should no longer participate after taking the bench. As we explained (id. [citations omitted]):

Virtually all of the activities of the organization involve the adoption, advocacy and pursuit of policies and positions in matters that are of substantial public controversy, many of which, in whole or in part, eventuate in litigation. Aligning oneself with the organization by way of membership, certainly creates the appearance of affirming the various policies and positions advocated and pursued by the group. This is not a position a judge should be in. It inevitably ‘casts reasonable doubt on the judge’s capacity to act impartially’ and is ‘incompatible with the judicial office.’”

         Although ASISTA is unlikely to appear in this part-time judge’s court, it nonetheless regularly engages in “potentially controversial lobbying, advocacy and litigation activities” such that a judge who assumed a leadership role in the entity would impermissibly associate him/herself with organizational positions on controversial issues (see e.g. Opinions 20-70; 17-70; 14-29). Accordingly, we conclude the judge may not serve on ASISTA’s board.