Opinion 21-136

September 9, 2021

Digest:       A full-time judge may not serve as an advisory board member of a recovery center and youth clubhouse affiliated with a CASA program, for which the inquiring judge makes referrals as the county-wide substance abuse treatment court.

Rules:        22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(I)-(ii); Opinions 20-55; 19-122; 15-201; 15-190; 07-161; 07-81; 07-02; 02-91; 98-35; 98-10; 92-15.

Opinion:

       The inquiring full-time judge presides in a county-wide substance abuse treatment court. A local Court Appointed Special Advocates (CASA) program, which is the treatment provider for many drug treatment court participants and to which the judge often makes referrals, has received a grant to establish a recovery center and youth clubhouse program. The judge asks if it is ethically permissible to serve on an advisory board for the planned recovery center and youth clubhouse.

       A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 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]).

       We have advised that, “[w]here 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” (Opinion 19-122; see also 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, we have also advised judges “not to serve on the board of directors of organizations or agencies to which a judge, directly or indirectly, refers cases, defendants or litigants” (Opinion 15-190; see also e.g. Opinions 98-10 [treatment court judge may not serve on board of drug treatment facility that is assigned cases by the courts]; 02-91 [family court judge may not serve on board of entity that provides services to individuals who may be indirectly referred by that court]; 07-02 [family court judge may not serve on board of entity that provides therapeutic visitation services to parents and is eligible for direct or indirect referrals by that court]; 20-55 [surrogate’s court judge may not serve on board of entity that provides advocacy and services for individuals with disabilities, where the entity would be eligible for guardianship appointments through that court]). We likewise said a judge may not serve on the advisory board of a dispute resolution agency to which the judge refers cases (see Opinion 07-161; see also Opinion 92-15 [finding an appearance of impropriety because “the judge might, either consciously or unconsciously, display undue favoritism in referring cases to an agency with which he or she is associated”).

       The recovery center and youth clubhouse are affiliated with and sponsored by the CASA program, to which the inquiring judge makes referrals. No previous distinctions we made apply here. As such, the inquiring judge must not serve on the advisory board as it would create an appearance of impropriety (see e.g. Opinions 15-190; 07-161).