Opinion 22-36

March 10, 2022

Digest:   A full-time judge may remain on the board of directors of a bar foundation, even though two officers of the foundation also serve on the bar association’s 29-member judicial rating committee that will be rating the judge as a candidate for re-election.

Rules:    22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); Opinions 20-103; 19-141; 19-55; 11-64; 11-32; 03-93/04-32; 94-86.

Opinion:

       A full-time judge will soon be running for re-election and will seek a judicial rating from a bar association. At present, the judge sits on the board of directors of the same bar association’s charitable foundation. The bar foundation’s president and executive director also sit on the bar association’s 29-member judicial rating committee. The judge asks whether the judge may remain on the bar foundation’s board of directors, given that two officers and fellow directors of the foundation also serve on the judicial rating committee.

       A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and consistently 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 an organization “devoted to the improvement of the law, the legal system or the administration of justice” (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]).

       We have advised that a judge seeking re-election or re-appointment need not disclose or disqualify when a member of a screening committee appears before the judge as an attorney (see Opinions 11-64; 03-93/04-32; 94-86).

       While we have also advised that a judge may serve on the board of a bar association’s charitable foundation (see e.g. Opinions 20-103; 19-141; 19-55; 11-32), we have not previously considered a scenario where some of the judge’s fellow directors also serve on the bar association screening panel that will be rating the judge as a candidate for re-election. Here, with nearly 30 members on the rating committee, we conclude that the judge may remain on the bar foundation’s board while simultaneously seeking a rating from the bar association’s rating committee. We note that, even if the bar association deems the president and its executive director to have a conflict (a question on which we cannot comment), the remaining members of the screening panel appear sufficiently numerous that we can see no risk of any appearance of impropriety for the judge under the Rules Governing Judicial Conduct.