Opinion 98-44

April 23, 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 judge may serve as an officer or member of the board of directors of a homeowners' association.

Rules:          22 NYCRR 100.4(C)(3). Opinions 95-133(Vol. XIII); 94-08(Vol. XII); 88-98(Vol. II); 87-30(Vol. I)

Opinion:

         The inquiring judge resides in a development in which each resident is a member of the homeowners' association. Prior to becoming a judge, the inquirer had served for three years as its president. The organization conducts no lobbying and its "sole mission is to preserve and improve the common areas and the overall neighborhood." The questions posed are whether the judge is permitted to serve as an officer or as a member of the board of directors of the homeowners' association.

         This inquiry is answered by section 100.4(C)(3) of the Rules Governing Judicial Conduct. That section articulates the parameters of a judge's extra-judicial activities. More specifically, that section deals with judges' participation in civic activities.

                   §100.4 A Judge Shall So Conduct The Judge's Extra-judicial Activities as to Minimize The Risk of Conflict With Judicial Obligations

(C)(3) A judge may be a member or serve as an officer,
director, trustee or non-legal advisor of an organization or
government agency devoted to the improvement of the law, the legal system or the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit.

         The Committee perceives no inherent ethical barrier to the judge's serving as an officer or on the board of directors of the homeowners' association. However, as the Committee has noted in responding to similar inquiries in the past, our conclusion carries with it certain cautions. For example, the Committee has advised that in serving as an officer or director of such an organization, a judge should not be providing legal or investment advice, or participating in decisions likely to lead to litigation. See Opinions 95-133(Vol. XIII); 94-08(Vol. XII); 88-98(Vol. II); 87-30(Vol. I). But, apart from such caveats, there is no ethical reason why a judge may not serve as an officer or director, and thus the Committee answers the questions posed in the affirmative.