Opinion 21-115
September 9, 2021
Digest: A family court judge may not accept an appointment to the Judicial Leadership Council of the National Court Appointed Special Advocate/Guardian Ad Litem Association for Children nor permit the organization to “promote” the judge on social media and its website.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); Opinions 18-100; 06-72; 99-111; 96-137; 96-96; 95-150; 95-126; 95-34; 88-150.
Opinion:
A family court judge asks if they may accept a two-year appointment to the Judicial Leadership Council of the not-for-profit National Court Appointed Special Advocate/Guardian Ad Litem Association for Children (National CASA/GAL) and permit the organization to “promote” the judge on their social media accounts and website. The appointment letter states:
National CASA/GAL, together with its state and local member programs, supports and promotes court-appointed volunteer advocacy so every child who has experienced abuse or neglect in the United States can be safe, have a permanent home and the opportunity to thrive[.]
The purpose of the Judicial Leadership Council (JLC) is to:
• Strengthen and develop ongoing relationships between judicial officers and National CASA/GAL, state and local Court Appointed Special Advocate (CASA)/volunteer Guardian ad Litem (GAL) programs
• Provide input and recommendations to National CASA/GAL on ways to engage the judiciary on a continuing basis regarding the establishment, development, improvement, maintenance and expansion of CASA/GAL’s programs
• Bring the judicial officers’ voice to the National CASA/GAL’s work on developing a network-wide growth process and strategy
The JLC … engages judicial leaders to help address child welfare and court systems’ challenges as well as external factors. A strong emphasis is placed on the [JLC’s] guidance around strengthening judicial support at a national, state and local level.
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]). As a general rule, a judge may serve as “an officer, director, trustee or non-legal advisor” of an entity “devoted to the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3]), where the activity does not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][3]). However, a judge may not so serve “if it is likely” that the organization “(i) will be engaged in proceedings that ordinarily would come before the judge, or (ii) if the judge is a full-time judge, will be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]).
Applying these principles, we have advised that a judge may participate in organizations devoted to the improvement of the legal system, where the entity does not appear in court or engage in any advocacy work “on behalf of any particular category of persons involved” in the courts (see e.g. Opinions 99-111 [criminal justice coordinating council neither appears in court nor advocates on behalf of complainants or defendants]; 95-150 [organization dealing with alcohol abuse “does not appear to take advocacy positions in the courts”]; 95-34 [domestic violence task force focuses on the manner in which cases are handled rather than prosecution or advocacy efforts, and includes both law enforcement agencies and public defenders]; see also Opinions 06-72 [judge may serve on Steering Committee established to make a comprehensive assessment of current practices involving sex offenders, with the caveat that “the judiciary cannot make an advance commitment to accept and implement the recommendations of the Steering Committee,” as doing so would “impinge upon the independence of the judiciary”]; 96-137 [full-time judge may serve on i) a regional advisory council to the Governor on women’s issues, ii) a judicial district’s gender bias committee, and iii) a Division of Criminal Justice’s advisory council on domestic violence issues, as “[a]ll three committees are concerned with the improvement of the law, the legal system or the administration of justice and none is likely to be engaged in litigation which might prohibit the judge’s service”]).
Conversely, where there is a likelihood that the organization “will be engaged in proceedings that ordinarily would come before the judge, or if the judge is a full-time judge, will be engaged regularly in adversary proceedings in any court” (see 22 NYCRR 100[C][3][a][i]-[ii]), we have opined that the judge may not serve as an officer, director, trustee or non-legal advisor (see e.g. Opinions 96-96 [victim services agency deals specifically with victims of domestic violence]; 95-150 [entity “appears in the criminal courts and takes positions concerning defendants”]; 95-126 [entity provides victims of domestic violence with the “emotional and financial support necessary for “successful prosecution” of family offenses]; see also Opinion 95-34 [where Project Safe “appears to involve contact with persons who are defendants in the criminal justice system, and who may appear before the judge, [] participation in the organization may reflect adversely on the judge’s impartiality, and the judge should not join it”]).
Likewise, we have advised that a family court judge who occasionally appoints CASA in cases before the court may not serve as a member of CASA’s advisory board (see Opinion 18-100). In reaching this conclusion, we noted that “CASA’s primary role is to inform judges of a case’s facts … [and] aid a judge in deciding cases of a child and family” and that “CASA normally engages in cases before a judge” (id.).
Here, the Judicial Leadership Council seeks to “engage the judiciary … regarding the establishment, development, improvement, maintenance and expansion of CASA/GAL programs” and “[a] strong emphasis is placed on … strengthening judicial support.” Moreover, the appointment letter indicates the mission of National CASA/GAL and its programs is to provide “advocacy” to children who have experienced abuse or neglect in the United States. Indeed, while not alone determinative, the word “Advocacy” in National CASA/GAL’s title only underscores the fact that the organization engages in advocacy (cf. Opinion 88-150 [even where a county task force on child abuse and neglect does not appear in court or file amicus briefs, “its name alone” could raise reasonable questions about a judge’s impartiality and/or create an impression of interference with judicial duties, where the judge hears abuse and neglect cases on cross-assignment).
Whether or not this family court judge appoints CASA in cases before them, given that we have recognized that “CASA normally engages in cases before a judge” (Opinion 18-100), we conclude that involvement in National CASA/GAL’s Judicial Leadership Council would not only run afoul of the rule that prohibits a full-time judge from serving as a director or non-legal advisor of any organization that “will be engaged regularly in adversary proceedings in any court” (see 22 NYCRR 100[C][3][a][ii] [emphasis added]) but could also cast doubt on the judge’s capacity to act impartially (see 22 NYCRR 100.4[A][1]), thereby creating an improper appearance.
Accordingly, the judge may not accept this appointment. The judge also may not permit the organization to “promote” the judge on their social media and website, as a judge must not lend the prestige of judicial office to advance any private interests nor permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).