Opinion 98-123

December 3, 1998

THIS OPINION WAS MODIFIED BY OPINION 00-124. PLEASE REFER TO THE NEW OPINION BEFORE RELYING ON THE CONTENTS OF THIS PRIOR RESPONSE.

Digest:         (1) A judge may serve on the board of directors of not-for-profit youth organizations that are of an educational, charitable, cultural, fraternal or civic nature, subject to the limitations and prohibitions set forth in the Rules Governing Judicial Conduct (2) A judge may write a letter on behalf of another judge seeking reappointment only at the written request of the screening panel or selection committee (3) A letter of complaint about the judge sent to the Supervising Judge should not be responded to publicly, but the judge may respond to the Supervising Judge and provide a copy of that response to a screening panel considering the judge's reappointment to the bench.

Rule:             Jud. Law 212 (1); 22 NYCRR 100.2(C); 100.2(D); 100.3(B)(8); 100.4(C)(3); Opinions 88-63 (Vol. II); 89-73 (Vol. III); 94-22 (Vol. XII); 95-33 (Vol. XIII); 95-75 (Vol. XIII).

Opinion:

           A judge of the Housing Court of the City of New York submits to the Committee the following questions:

1. Can a judge be a member of the Board of Directors of a not-for-profit youth organization, e.g. "Boys Club of America," "Pathways for Youths" or "Girls Club?"

2. Can a judge write a letter on behalf of another judge who is seeking re-appointment? What if the request comes from an article in the New York Law Journal ...? What if a written request is made from the screening panel or committee? Can a judge respond to an oral request, and from whom should the request come?

3. A letter of complaint against "Judge X" is written to the supervising judge of the court. The supervising judge sends a copy of the complaint to "Judge X" and asks him to comment on the complaint.

a. Is the letter of complaint considered a formal complaint against the judge? (Keep in mind that the public write complaint letters against judges often.)

b. Should the judge respond to the letter?

c. To whom can the judge distribute copies of the letter? In this hypothetical, the complainant sent copies of the letter to public officials, other attorneys in the courthouse, newspapers and other legal organizations.

d. If asked by a screening panel for re-appointment about the incident can the judge produce a copy of the response?

         In response to question "1," the Committee is not aware of any reason why the judge may not serve on the board of directors of the not-for-profit youth organizations mentioned. Section 100.4(C)(3) permits a judge to be a member and serve as a director of an "educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit," subject to the limitations set forth in the Rules Governing Judicial Conduct. Presumably the organizations cited fall into one or more of the categories specified. But, since the judge did not provide any details concerning the organizations, the Committee declines to speculate concerning the possibility that some prohibitory rule (e.g. 22 NYCRR 100.2[D]), may be drawn in issue.

         As to question "2," concerning a judge's reappointment to the bench, it is the view of the Committee that a judge may respond to a written request from a screening panel, selection or nominating committee concerning the reappointment of the individual. A judge, however, should not on his/her own initiative, or at the request of the applicant or another individual, or in response to a public solicitation in the local legal newspaper, write a letter on behalf of a person seeking reappointment. 22 NYCRR 100.2(C); Opinions 88-63 (Vol. II); 89-73 (Vol. III); Opinion 95-33 (Vol. XIII); 95-75 (Vol. XIII).

         In regard to question "3," the Committee notes that a judge may not publicly comment on a proceeding, pending or impending in any court. 22 NYCRR 100.3(B)(8); Opinion 94-22 (Vol. XII). This would include matters which were formerly before the judge and which may be subject to appeal. The judge may respond to the Supervising Judge. But, the response should only be to the Supervising Judge and should not be forwarded to public officials, attorneys, the press or legal organizations, even if those individuals or organizations received copies of the original letter of complaint. The judge may, in response to an inquiry from a screening panel considering the potential re-appointment of the judge, provide the screening committee with a copy of any response that may have been sent to the Supervising Judge.

         Whether such a "letter of complaint" is to be "considered a formal complaint against the judge" is not a question that can be answered by the Committee. The question posed raises no issue relating to judicial ethics or the performance of judicial duties and thus is outside the mandate of the Committee's authority. Jud. Law 212 (l).