Opinion 91-31

March 14, 1991

NOTE: MODIFIED BY RULE 100.4(C)(3)(b)(i)

The Rules Governing Judicial Conduct were amended in 1996. Rule 100.4(C)(3)(b)(i) now provides as follows:

(b) A judge as an officer, director, trustee or non-legal advisor, or a member or otherwise:

(i) may assist such an organization [an organization devoted to the law, the legal system or the administration of justice or an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit] in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities.

Digest:         A full-time judge with certain limitations may serve as president of a local historical society.

Rules:          22 NYCRR 100.4 and 100.5(b).

Opinion:

         A full-time judge asks whether the judge may serve as president of a local historical society which is devoted to preserving an old courthouse and other sites of historical value.

         The principles governing a judge’s participation in civic and charitable activities are contained in section 100.5(b) of the Rules of the Chief Administrator, which provides:

A judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. A judge may serve as an officer ... of [a] 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.

(2) No judge shall solicit funds for any ... civic organization, or use or permit the use of the prestige of the office for that purpose, but may be listed as an officer, ... of such an organization, provided, however, that no such listing shall be used in connection with any solicitation of funds. No judge shall be a speaker or the guest of honor at an organization’s fundraising events, but he or she may attend such events....

(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.

         While there is no ethical prohibition against a judge taking a public position on the building, preservation, or improvement of court facilities (22 NYCRR 100.4) or any other sites selected for the society’s efforts, the judge should not participate if there is a likelihood that litigation will arise from the projects. Lawsuits, occasioned by disputes between real estate developers or municipalities and historical groups are not uncommon. Nor should the judge participate if it may be perceived that the society is using the prestige of the judge’s office for fundraising activities.

         Therefore, the inquiring judge may serve as president of the historical society, but should ensure that the society takes all necessary steps to remove the judge’s name from any materials used in fundraising activities. In the event that lawsuits are commenced involving the society’s projects, the judge should consider resigning as president.