Opinion 90-101

September 18, 1990

Digest:         A recently elected full-time judge may continue to manage a small rental property the judge owns, where the management involved is strictly limited to what is necessary and incidental to maintain the investment.

Rules:          22 NYCRR §100.3(c)(2)

Opinion:

         A recently elected full-time judge who has owned and managed two small rental investment properties prior to becoming a judge inquires whether it is permissible to continue to own and manage the properties.

         Section 100.5(c)(2) of the Rules of the Chief Administrator of the Courts provides that no full-time judge “shall be a managing or active participant in any form of business enterprise organized for profit ...”

         However, the business activity in question here is permissible, on the particular facts presented, since the activity appears to be primarily a personal investment with only that degree of management involved that is necessarily incidental to maintain such investment.

         A contrary construction of the rule that forbade any management whatsoever, even that which is necessarily incidental to ownership, would make it impossible even for a judge who owns a two-family house and rents one apartment to a tenant, to take care of the rented apartment, without hiring a manager. The Committee does not adopt that strict construction.