Opinion 88-98

September 19, 1988

Topic:          Family Court Judge as member of residential cooperative board of directors.

Digest:         Family Court Judges may serve on the board of directors of their residential cooperative, provided that they avoid giving legal or investment advice or participating in controversial decisions.

Rules:          22 NYCRR §§100.2(a), 100.2(c), 100.5(b), 100.5(c)(1), 100.5(c)(2); Canons 2A, 2B of the Code of Judicial Conduct.

Opinion:

         A Family Court Judge who has been elected to the Board of Directors of the residential cooperative where the judge lives, wishes to know if it is appropriate to serve in that capacity.

         A Family Court Judge may serve as a member of a cooperative board subject to certain limitations. Sections 100.5(b) of the rules of the Chief Judge [22 NYCRR] provides in pertinent part that:

A judge may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1)A judge shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or her or will be regularly engaged in adversary proceedings in any court.

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(3)A judge shall not give investment advice to such an organization, but he or she may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

         Although a residential cooperative is a corporation, it is not a business enterprise organized for profit and is therefore not covered by section 100.5(c)(2). On the contrary, a residential cooperative is more nearly analogous to a civic organization, being a form of homeowners’ association. Furthermore, it is unlikely that a cooperative would be a party to litigation before the Family Court. Thus, there is no prohibition against a Family Court Judge serving on a cooperative board.

         Several cautions are in order nevertheless. As already noted under section 100.5(b), the Judge should not give legal or investment advice to the cooperative. Further, to avoid appearances of impropriety under section 100.2(a) and (c), and 100.5(c)(1), and Canons 2A and 2B of the Code of Judicial Conduct, the judge should avoid participating in decisions of the cooperative board which are likely to lead to litigation in any court. A cooperative board’s duty to approve prospective purchasers of apartments is particularly sensitive and the judge should not serve on the board unless he or she can arrange to abstain from voting on such approvals.

         This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.