Opinion 98-02

January 28, 1998

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 may serve as a director or officer of a not-for-profit corporation which manages a community of cottages, provided (1) the judge refrains from participating in decisions that are likely to lead to litigation in any court and (2) the judge is not required to participate in any litigation.

Rules:          22 NYCRR 100.4(C) (3)(a)(i); 100.4(C)(3)(a)(ii); Opinions 95-69(Vol. XIII); 94-08(Vol. XII); 94-06(Vol. XII); 88-98(Vol. II)

Opinion:

         A full-time judge inquires whether the judge may serve as a director or officer of a not-for-profit corporation, the business of which is the ownership and maintenance of property occupied by approximately 80 residential cottages. The judge advises that there is, or at some point may be, litigation involving the local municipality, the corporation, and certain members of the corporation. Such real or potential litigation arises from a dispute "concerning ownership of certain properties adjacent to properties owned by members of the corporation".

         Section 100.4(C)(3) of the Rules Governing Judicial Conduct states that "a judge may ...... serve as an officer [or] director . . . of an educational . . . [or] civic organization not conducted for profit". However, a judge should not serve in such a capacity if the organization in question is likely to "be engaged in proceedings that ordinarily will come before the judge" (22 NYCRR 100.4(C)(3) [a] [i]) or if the organization in question is likely to be "engaged regularly in adversary proceedings in any court". 22 NYCRR 100.4 (C)(3)(a)(ii).

         The organization in question appears to be similar to a cooperative or condominium, and the Committee has previously stated that such entities may be regarded as the civic organizations referred to in section 100.4(C)(3), above. See, Opinion 88-98(Vol. II). In accordance with this rule, the Committee has stated that, subject to certain caveats, a judge may serve on the board of such organizations. See, Opinions 95-69(Vol. XIII); 94-08(Vol. XII); 88-98(Vol. II). In the cited opinions, the Committee advised that a judge should avoid participating in the decisions of the board which are likely to lead to litigation in any court, and should not belong to admissions or legal committees likely to make such decisions. Also, in Opinion 94-06(Vol. XII), the Committee stated that a judge should not serve where to do so would require the judge "to participate in [pending] lawsuits, which would include hearings or trials".

         In this instance, it does not appear that the corporation will "be engaged regularly in adversary proceedings in any court" (22 NYCRR 100.4 (C)(3)(a)(ii), [emphasis added]), or that the single litigation referred to by the inquiring judge will come before the judge himself/herself. The judge is therefore not prohibited from being a director or officer. However, as noted in the opinions cited above, the judge should not participate in decisions of the board which would "lead to litigation in any court", and should resign from the board if it becomes necessary to participate in any litigation.