Opinion 95-47

April 27, 1995

NOTE: MODIFIED IN PART BY RULE 100.4(C)(3)(b)(iv)

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

"A judge as an officer, director, trustee or non-legal advisor, or a member or otherwise [of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit]: … (iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation, but may be listed as an officer, director or trustee of such an organization. Use of an organization's regular letterhead for fund-raising or membership solicitation does not violate this provision, provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation."

In addition, much of the language of former Rule 100.5(d) (concerning a judge's fiduciary activities) has been moved to Rule 100.4(E)(1). The definitions have been moved to Section 100.0(I), and applicability to part-time judges is addressed in Section 100.6(B)(1).

Digest:         (1) A recently appointed full-time judge who has been a member of the board of directors of the National Multiple Sclerosis Society may continue such membership provided that the judge does not participate in the solicitation of funds or use his or her office for that purpose. (2) Since the judge has been appointed to fill a full-time vacancy pending election he/she may continue as trustee of a trust with the approval of the Chief Administrator of the Courts.

Rules:          22 NYCRR 100.5(b); Opinion 91-23, Vol VII.

Opinion:

         (1) For the past three years, a recently appointed full-time judge has been a member of a district chapter of the National Multiple Sclerosis Society. As such, the judge has been very active in fund-raising activities. The judge wants to know if there is any capacity in which he/she can continue such board membership.

         As we held in Opinion 91-23, Vol. VII, and herewith reiterate:

Section 100.5(b)(2) of the Rules of the Chief Administrator of the Courts provides that a judge may participate in charitable and educational activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties, but admonishes that:

No judge shall solicit funds for any educational, religious, charitable, fraternal or civic organization, or use or permit the use of the prestige of the office for that purpose, but may be listed as an officer, director or trustee of such 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 ....

         Pursuant to this rule, the judge may serve as a member of the board of directors, but may not solicit funds or permit the use of the prestige of the judge's office for that purpose. Further, the judge's name may be listed as a member of the board of directors, but may not be used in connection with the solicitation of funds, even though the judge is not identified as a judge on the organization's stationery. (Opinion 91-23, Vol. VII.)

         (2) Since 1974 the judge has served as trustee of a trust established decades ago and now seeks an opinion in connection with his/her continuing as trustee. The trust was set up by the judge’s grandfather for a close friend who was and still is a non-resident foreign national. The judge’s grandfather served as trustee and upon his death the judge’s father was trustee. The judge, who enjoys a very close personal relationship with the donor of the trust, by trust amendment, became trustee upon the death of the judge’s father. The trust contains liquid and non-liquid assets and is managed by a major investment house.

         In our opinion, with the consent and approval of the Chief Administrator of the Courts, the judge may continue as such trustee.

         The judge would apparently qualify for such continued service as trustee under the exception carved out by the Rules of the Chief Administrator, section 100.5(d), which reads as follows:

                   (d) Fiduciary Activities. No judge, except a judge who is permitted to practice law, shall serve as the executor, administrator, trustee, guardian or other fiduciary, designated by an instrument executed after January 1, 1974, except for the estate, trust or person of a member of his or her family, or with the approval of the Chief Administrator of the Courts, a person not a member of the family with whom the judge has maintained a longstanding personal relationship of trust and confidence, and then, only if such service will not interfere with the proper performance of judicial duties. “Members of his or her family” includes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familiar relationship.

         Under the facts presented, the section allows the judge to continue as trustee but such continuation also requires approval of the Chief Administrator of the Courts.