Opinion 24-92

May 9, 2024

Digest:  A judge who serves on the board of the Historical Society of the New York Courts may authorize the distribution of funds held by the Historical Society to support projects such as granting scholarships to judges, producing a court-related film, and placing artwork at a courthouse.

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iii); Opinions 20-202; 17-163/18-03/18-21; 11-28; 09-170; 09-167; 08-193; 06-117.

Opinion:

          A full-time judge asks if they may serve on the board of the Historical Society of the New York Courts, given that it will “act as a ‘pass through’ for certain fund-raising activities conducted by non-judges” in three court-related projects. 

          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]).  A judge may participate in extra-judicial activities that are compatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially; 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 full-time judge may not serve as an officer, director, trustee, or non-legal advisor of a not-for-profit organization if it will be engaged in proceedings that ordinarily would come before the judge or will be engaged regularly in adversarial proceedings in any court (see 22 NYCRR 100.4[C][3][a][i]-[ii]).  A judge may not personally participate in fund-raising activities or other solicitation but may participate in planning fund-raising, managing and investing funds (see 22 NYCRR 100.4[C][3][b][i]).  A judge may also make recommendations on projects concerning the law, the legal system, or the administration of justice to public and private fund-granting organizations (see 22 NYCRR 100.4[C][3][b][iii]).

          We have already found that the Historical Society “functions as a bar association” for judicial ethics purposes (Opinion 06-117), and we adhere to that view.  However, we will consider whether any or all of the three projects at issue create any appearance of impropriety for a judge to serve on the Historical Society’s board.

1) Judicial Scholarships

          The first project involves scholarships for judges to attend an educational seminar devoted to the improvement of the law, the legal system, or the administration of justice.  The Historical Society will select the judge(s) to receive the scholarship and deliver the funds to the seminar’s sponsor.  The funds are provided to the Historical Society by a non-judge private donor and the Historical Society does not solicit funds for the scholarship.

          We have advised that a judge may serve on a panel that will award annual student-athlete scholarships on behalf of a hospital’s community relations board (see Opinion 08-193) and on the board of a local not-for profit organization that awards scholarships to aspiring seminarians (see Opinion 09-170), as long as the judge will not be involved in any fund-raising.  Here, too, there will be no fund-raising by the judge, whether as a board member or otherwise.

2) Educational Film

          The second project involves the deposit and distribution of funds by the Historical Society to co-sponsor the production of an educational film about a specialized court.  An advisory council of non-judges will raise the funds from law firms.  The Historical Society will not solicit the funds to produce the film but will deposit and maintain the funds until it is time to pay them to the production company.  The Historical Society will be named as a co-sponsor of the film.

          The Historical Society has previously been involved in sponsoring continuing legal education for judges and attorneys, publishes a peer-reviewed scholarly journal, and has published several books.  The production of an educational film about a specialized court is a further extension of their stated goal “to preserve the legal history of New York State and to foster scholarly understanding and public appreciation of the history of the Judiciary and Bar” (Opinion 06-117; cf. Opinion 17-163/18-03/18-21 [a full-time judge may, without compensation, participate in commercially produced documentaries or news programs]).

3) Diversity in Courthouse Artwork

          The third project involves the Historical Society as the repository for funds solicited by an advisory committee of non-judges for the purpose of erecting an artwork on the roof of a courthouse to promote diversity.  The Historical Society would again not be involved in soliciting any funds, but would hold them until directed to deliver them (presumably to the artists).

          We have advised that a judge may accept artwork from a charitable foundation on behalf of the Unified Court System and display it in a courtroom (see Opinion 09-167).  Likewise, a judge may accept a local attorney’s offer to explore ways to raise money to preserve and display historical photographs in the courthouse (see Opinion 11-28). 

          We have also advised that judges may collaborate with the Historical Society on a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups (see Opinion 20-202).  The judges may assist in “creating a written plan” for the Historical Society to use in its grant proposals and, if the necessary funds are acquired, “the judges may likewise collaborate with the Historical Society in their allocation” (id.).

Conclusion

          The funds at issue here will be solicited and/or donated by others, and will be held by the Historical Society for the purposes of granting scholarships to judges, producing a court-related film, and placing artwork at a courthouse to promote diversity.  These projects each concern the law, the legal system, and the administration of justice, and the Historical Society’s proposed involvement does not create any appearance of impropriety for a judge to serve as a board member.  Indeed, a judge who is a board member may both participate in the management and investment of the Historical Society’s funds and approve the allocation of those funds.