Opinion 21-166

October 28, 2021

Digest:         Although a full-time judge may serve on the board of trustees of a not-for-profit private school, the judge (1) may not serve on the board’s audit/risk committee, (2) may not solicit a legal opinion from an attorney on behalf of the board, and (3) may not negotiate a discounted fee with an attorney or law firm for legal services to the school.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2©; 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I), (iv); 100.4(G); Opinions 20-74; 20-03; 19-86; 19-30; 17-55; 16-98; 15-149; 12-39; 05-66; 03-138.

Opinion:

         The inquiring full-time judge serves on the board of trustees for a not-for-profit private school. While the judge would not be involved in soliciting funds and will not use or permit the use of the judge’s judicial title in the course of this work, the judge is required to join a committee. The judge would like to join “the audit/risk committee which involves reviewing liability coverage for the school.” As the insurer “neither covers nor has a duty to defend against Covid-19-related personal injury suits,” the board would like to consult with an attorney who specializes in litigation defense about the situation. The judge is willing to solicit a legal opinion on behalf of the board of trustees, and to negotiate a discounted fee for legal services to the school, but first asks if such activities are ethically permissible.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that are compatible with judicial office and do not cast doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge generally may serve as an officer, director, trustee or non-legal advisor of an educational organization not conducted for profit (see 22 NYCRR 100.4[C][3]), provided the entity is unlikely to be engaged in “proceedings that ordinarily would come before the judge,” and in the case of full-time judges, is unlikely to be engaged regularly in adversarial proceedings “in any court” (22 NYCRR 100.4[C][3][a][I]-[ii]).  A judge must not personally participate in the solicitation of funds (see 22 NYCRR 100.4[C][3][b][I]) or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]; cf. 22 NYCRR 100.2[C] [judge must not lend the prestige of judicial office to advance any private interests]). Moreover, a full-time judge may not practice law (see 22 NYCRR 100.4[G]).

         Clearly, a full-time judge may serve on the board of trustees or board of directors for a not-for-profit private school (see e.g. Opinions 20-74; 16-98), where the school is not likely to appear before the judge and is not likely to be engaged regularly in adversarial litigation in any court (see 22 NYCRR 100.4[C][3][a][I]-[ii]).

         However, we have previously advised that a full-time judge may not serve on a not-for-profit organization’s audit committee (see Opinions 19-86 [school]; 15-149 [school]; 03-138 [charitable entity that operates certain medical centers]). Accordingly, this judge should not serve on the audit/risk committee of the school’s board of trustees.

         While a full-time judge generally may serve as a “non-legal advisor” to a not-for-profit educational entity (22 NYCRR 100.4[C][3]), we believe they should not solicit a legal opinion on behalf of a school’s board of trustees from an attorney who specializes in litigation defense.¹ Even though the judge presumably envisions serving as a mere conduit for the attorney’s advice, we believe it would be difficult, if not impossible, to avoid the appearance that the judge is exercising independent legal judgment both in speaking to the attorney on behalf of the board and in communicating the attorney’s advice to the board. This role is therefore likely to create an impression that the judge is serving as a legal advisor to the board, which is impermissible for a full-time judge (see 22 NYCRR 100.4[G]; cf. Opinion 05-66 [a full-time judge “may not give legal advice to the board on leases, contracts, and the like, even if the judge does not act as the organization’s attorney with outsiders”]).

         Finally, we believe the judge should not negotiate a discounted fee with an attorney or law firm for legal services to the school, as it could readily be perceived as soliciting a gift or favor on behalf of the school, which is impermissible (see 22 NYCRR 100.3[C][3][b][I], [iv]; cf. Opinion 17-55 [“A judge may not directly or indirectly solicit property owners, car rental agencies, or food merchants on behalf of the Red Cross.”]).

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¹ We assume that, at this time, the judge is not aware of any impending lawsuits against the school. Should such lawsuits materialize, the judge may seek further guidance (see Opinions 20-03; 19-30; 12-39).