Opinion 94-06

April 28, 1994

Digest:         A judge should not continue to serve as a director of a charitable organization engaged in various litigations, even though the judge had been appointed a director by the court prior to becoming a judge and as a result of allegations of wrong-doing by predecessor directors.

Rules:          22 NYCRR 100.5(b)(1)

Opinion:

         Prior to being elected a full-time judge, the inquirer, and two other practicing attorneys, had been appointed by the Supreme Court as directors of a not-for-profit foundation. The appointments arose out of serious irregularities on the part of a prior director of the foundation in managing its assets. Thereafter, the judge and the two other appointees, on motion of the attorney-general, were designated permanent directors. At present they are its only directors and no longer report to the court. The judge and the two other directors are compensated for their services.

         The foundation at present is engaged in various litigations, directly and indirectly as part of the efforts of the present directors and the attorney-general to rectify the prior wrongs that had been committed and which resulted in the appointment of the judge as director. Although assistance to the attorney-general and the prosecution of claims on behalf of the foundation may well be in pursuit of worthy purposes, it is the opinion of the committee that they are activities in which the judge should not be involved, directly or indirectly.

         Based upon the submission, which included a description by the president of the foundation of the current status of the litigations, it appears that the present directors (and thus the inquirer) may be required to participate in such lawsuits, which could include hearings or trials. Further, the possibility is not excluded of other litigation arising, in which the present directors, including the judge, may be named as parties.

         Under such circumstances, Section 100.5(b)(1) of the Rules of the Chief Administrator is applicable. For although a judge ordinarily may serve as a director of a charitable organization, such service is not permitted if it is likely that the organization “will be regularly engaged in adversary proceedings in any court.” That appears to be the present situation. Accordingly, it is the opinion of the committee that the judge should resign as a director of the foundation.