Opinion 21-34

March 11, 2021

Digest:         (1) A judge may solicit other judges to join, or renew their memberships in, a local bar association, but may not similarly solicit attorneys or other non-judges. (2) A full-time judge may not serve on the board of directors of a not-for-profit senior housing development that is likely to regularly engage in adversarial litigation in any court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); Opinions 20-55; 20-45; 20-03; 19-30; 18-40; 16-04; 08-156; 96-19.

Opinion:

         The inquiring full-time judge has questions about two extra-judicial activities. First, as an officer of certain bar associations, the judge would like to ask lapsed or former members to renew their membership and to invite non-members to join. The judge asks if this is permissible. Second, as a member of the board of directors of a not-for-profit senior citizen housing development, the judge asks if it is proper to engage in discussions regarding the financial affairs of the building, including whether to hire counsel for eviction proceedings and other litigation. It appears that the building, as a not-for-profit landlord, engages in eviction proceedings, although such matters have been on hold during the current public health crisis. The judge advises that, in prior years, the housing development’s general counsel would commence eviction proceedings, and in most instances the tenant would move out to resolve the matter. The housing development currently has some tenants who are delinquent in rent, and it is anticipated that litigation will ensue once eviction moratoriums are lifted. The judge further advises that the board is looking to retain counsel concerning possible zoning and building code violations, which may also result in litigation if not otherwise resolved.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that are compatible with judicial office and do not cast doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge generally may serve as an officer, director, trustee or non-legal advisor of a civic or charitable organization not conducted for profit (see 22 NYCRR 100.4[C][3]), provided the entity is unlikely to be engaged in “proceedings that ordinarily would come before the judge,” and in the case of full-time judges, is unlikely to be engaged regularly in adversarial proceedings “in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]).

1. Bar Association

         While a judge may serve as an officer of a bar association or other permissible not-for-profit entity, a judge may not personally solicit funds or “use or permit the use” of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][i], [iv]). Thus, a judge may not solicit attorneys or other non-judges to join or renew their membership in an organization (see Opinions 08-156; 16-04 [bar associations]; 96-19 [fraternal organization]). However, a judge may solicit other judges to join or re-join the association, or to renew their membership. In such circumstances, there is no risk of an appearance of coercion, and/or misuse of the prestige of judicial office, as might exist if the judge were to solicit attorneys to either join or renew their membership (see Opinion 08-156; 22 NYCRR 100.4[C][3][b][iv]).

2. Senior Citizen Housing Development

         The judge also asks about serving on the board of a senior citizen housing development. While the judge’s focus is on whether it would be permissible to participate in certain discussions and/or decisions concerning the building’s finances and upcoming eviction proceedings and other litigations, these facts raise a threshold issue which must first be addressed.

         The housing development’s status as a not-for-profit landlord already suggests the possibility that it might regularly engage in eviction proceedings (cf. Opinion 18-40), and the supplemental information provided by the judge confirms this. While “regular engagement” in adversary proceedings is difficult to quantify, the rules prohibit a full-time judge from serving “if it is likely that the organization will be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii] [emphasis added]). That is, where there is a likelihood that a particular not-for-profit entity will be involved regularly in adversarial litigation, a full-time judge may not serve on its board - even if such matters could never be heard in the judge’s court (see Opinions 20-55; 20-45; 20-03; 19-30; 18-40).

         Accordingly, we conclude this full-time judge may not serve on the board of the not-for-profit senior citizen housing development, as it is likely to be engaged regularly in adversarial proceedings in the courts (see 22 NYCRR 100.4[C][3][a][ii]; Opinion 18-40 [noting that “service on the entity’s board would violate” the proscription of Section 100.4(C)(3)(a)(ii), “as the entity is likely to be regularly engaged in litigation with its tenants”]).