Opinion 23-61
May 4, 2023
Digest: (1) A judge may not serve as the director of environment and legislation for a not-for-profit organization which seeks to promote scuba-diving. (2) Although the judge may engage in certain public advocacy activities where the judge has a clear and direct personal interest at stake, the judge may not spearhead the organization’s efforts to protest a planned discharge of substances into a local waterway.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i); 100.5(A)(1); 100.6(B)(1)-(4); Opinions 22-160; 21-185; 19-30; 18-74; 17-38; 16-169; 10-130; 06-93; 98-160; 98-74; 97-36; 04-24.
Opinion:
The inquiring part-time attorney judge is on the board of a not-for-profit Club which seeks to “promote the sport of scuba diving.” The judge asks two main questions. First, may the judge, as a board member, assume the role of the Club’s “director of environment and legislation”? Pursuant to the bylaws, this directorial position (a) informs “Club members of events, pending legislation, environmental issues, etc. that potentially could affect individual or Club diving activities” and (b) initiates “action within the Club to support beneficial activities or to counter detrimental ones.” Second, may the judge “spearhead and/or assist in efforts to protest” announced plans by another entity to discharge certain substances into a waterway which is used for scuba diving and is also upstream from the waterfront town where the judge resides? Specifically, the judge would like to know whether it is ethically permissible “to encourage the club to publicly oppose this plan, to encourage individual members to appear at scheduled protest events, or to otherwise assist others in speaking out against this proposed discharge.”
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’s extra-judicial activities 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 and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Subject to certain limitations, a part-time judge may practice law and may also accept private employment, provided that such employment is not incompatible with judicial office and does not conflict or interfere with proper performance of the judge's duties (see generally 22 NYCRR 100.6[B][1]-[4]). However, a part-time judge may not be an officer or director of a not-for-profit charitable or civic organization if it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge’s court (see 22 NYCRR 100.4[C][3][a][i]). A judge also must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]) and must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).
1. Director of Environment and Legislation
With respect to the first question, the title of the directorial position – director of environment and legislation – together with its responsibilities of informing Club members of pending legislation and initiating “action within the Club to support beneficial activities or to counter detrimental ones” appears to put the judge in the position of legal advisor to the organization. We have advised that a part-time judge may act as a legal advisor to a not-for-profit organization “as long as an attorney-client relationship exists and the judge’s actions are clearly identifiable as those of an attorney representing a client” (Opinion 98-74). Here, no such attorney-client relationship exists. Rather, the judge would be tasked as a board member with providing information on pending legislation and initiating action in support of beneficial activities or against detrimental ones.
Moreover, the responsibilities of the director of environment and legislation, as described, appear to involve impermissible political activity unrelated to the law, the legal system or the administration of justice (see Opinions 21-185 [part-time judge who serves as a trustee of a community college may attend a “national legislative summit” sponsored by a non-political, not-for-profit organization of college trustees, but must not participate in meetings with federal legislators where such meetings will be seen as lobbying efforts in support of the organization’s legislative agenda]; 98-160 [part-time judge who serves as a library trustee may not participate in state and local lobbying efforts and other activities of the Board as “such lobbying … does not relate to the law, the legal system, or the administration of justice”]). As indicated by the inquiring judge’s second question, it appears that the Club members look to their director of environment and legislation to assume tasks such as spearheading and/or assisting in protest efforts. In sum, the duties and expectations of the role of director of environment and legislation would create an appearance of impropriety and cast doubt on the impartiality of the judiciary. Accordingly, we conclude that the judge may not so serve.
2. Public Advocacy Against Proposed Discharge
We have advised that a judge may engage in certain public advocacy activities where the judge has a cognizable personal interest at stake, often one affecting the judge’s home (see generally Opinions 17-38; 16-169 [judge may circulate a petition, which does not take a position for or against the proposed sale, to force a referendum on a proposed sale of a nearby parcel of land owned by the local school district]; 06-93 [judge may speak at a public hearing regarding power lines to be located near the judge’s house]; 97-36 [judge may write to a governmental authority about a proposed traffic light near the judge’s home]; 04-24 [judge may write to the State Liquor Authority regarding the renewal of a liquor license for an establishment near the judge’s home]). Here, it appears that the planned discharge will be upstream from the waterfront town where the judge resides. As the inquiring judge has a clear and direct personal interest at stake, the judge may engage in public advocacy activities akin to those described in the aforementioned opinions. In doing so, the judge may advocate only on the judge’s own behalf as a private citizen whose personal interests will be directly affected (cf. Opinion 18-74 [administrative judge who learns that a full-time judge, as a parent, provided legal advice to other parents and impermissibly commented on pending litigation “beyond the bounds of the judge’s own direct, personal interest in his/her minor child’s education” must take appropriate action). The judge should not use judicial letterhead or otherwise refer to their judicial status.
However, with respect to other Club members’ request that the judge “spearhead and/or assist in efforts to protest” the planned discharge, we conclude that this is impermissible activity (cf. Opinion 22-160 [discussing prior opinions concerning a judge’s participation in protests, rallies, marches, and demonstrations]). The planned discharge may very well become a matter of local public controversy and is not directly related to the law, the legal system, or the administration of justice. We have previously cautioned that where a “not-for-profit entity ‘engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,’ … a judge ‘must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization” (see Opinion 19-30).
On these facts, serving as the organization’s director of environment and legislation and/or spearheading or assisting with the Club’s or its members’ efforts to oppose the planned discharge could readily be perceived as prohibited political activity and as lending judicial prestige to promote private interests (cf. Opinion 10-130). Accordingly, we conclude that the inquiring judge may not serve as the Club’s director of environment and legislation and may not spearhead or organize efforts in opposing a proposed plan to discharge substances into a local waterway.