Opinion 23-218

February 1, 2023

Digest: (1) A judge who presides in estate proceedings may continue to serve on the board of directors of a not-for-profit hospice organization, even after the judge becomes aware that a testator named the hospice as a beneficiary in their will. 
(2) The judge may preside over the probate of a will that contains a bequest to the hospice, absent a challenge to the bequest.  If a challenge occurs, the judge must disqualify.

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.3(E)(1); 100.3(E)(1)(d)(ii)-(iii); Opinions 15-190; 02-91; 98-10.

Opinion: 

          The inquiring judge, acting as a surrogate, asks if it is ethically permissible to serve on the board of a not-for-profit hospice organization, which – although it does not ordinarily appear as a party in any court – is sometimes named as a beneficiary under a will in estates in the judge’s court.  As such, it has legal standing to assert its right to a distribution.

           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 generally may serve as an officer, director, trustee, or non-legal advisor of a not-for-profit educational, religious, charitable, cultural, fraternal, or civic organization (see 22 NYCRR 100.4[C][3]).  However, such service is prohibited for all judges if the entity is “likely” to be engaged in “proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]).  In the case of full-time judges, such service is also prohibited if the entity is “likely” to be “engaged regularly in adversarial proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]).  A judge must disqualify in a proceeding where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in matters where the judge “is an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]) or “has an interest that could be substantially affected by the proceeding” 22 NYCRR 100.3[E][1][d][iii]). 

          We start with the provisions of subparagraph 100.4(C)(3)(a), where the critical words are “likely,” “regularly,” and “ordinarily.”  From the first prong, we understand that the judge may not serve as a director if it is reasonably foreseeable that the hospice would “be engaged” in proceedings that ordinarily would come before the judge’s court (see 22 NYCRR 100.4[C][3][a][i]).  In our view, this is not implicated merely because a not-for-profit hospice organization may occasionally be named as a beneficiary in a will, at a particular testator’s sole discretion.  From the second prong, applicable to full-time judges only, we understand the judge may not serve as a director if the hospice’s regular appearance in “adversarial proceedings” before “any court” is reasonably foreseeable (22 NYCRR 100.4[C][3][a][ii]).  On the facts presented, the hospice does not regularly appear in adversarial proceedings in any court.  Thus, in our view, neither prong of subparagraph 100.4(C)(3)(a) bars the judge’s service on the hospice’s board.

          That does not necessarily end the analysis, as our opinions have also addressed certain related issues that may create an appearance of impropriety.  For example, we advised that a judge may not serve on the board of an entity to which the judge’s court may make direct or indirect referrals (see e.g. Opinions 02-91 [judge who presides in family court matters may not serve on board of “organization that provides services to individuals who may indirectly have been referred to the agency by the Family Court”]; 98-10 [judge presiding in treatment court may not serve on board of drug treatment facility that accepts cases from courts]).  Indeed, in Opinion 98-10, although the judge had “no involvement” in assigning a defendant to a particular treatment facility, we noted service on the board was also impermissible due to the judge’s role on the treatment court’s screening panel, as the judge could “indirectly” increase the pool of clients for the facility by voting to accept a defendant into the drug treatment program.  Similarly, we advised that a judge could not serve on the board of “a not-for-profit agency with a broad educational mission that includes certain traffic safety education programs,” given that “[d]efendants in the judge’s court are occasionally required to attend such programs” (Opinion 15-190).  Even though the traffic safety courses were “a relatively small part of the agency’s overall educational programming,” we concluded there was “at the very least, an appearance of impropriety due to this apparent conflict between the judge’s adjudicative duties and his/her role as a board member” (id.).

          These precedents thus discuss an aspect of the appearance of impropriety that can arise when a judge has, or may seem to have, power to benefit an organization in the judge’s judicial capacity, for example by requiring litigants to attend certain programs.  Here, the testator has already chosen to name the hospice in the will as part of a testamentary plan.  Unlike the judges referenced in the opinions above, the judge here is simply required to approve the testamentary plan or resolve issues in the testator’s plan. 

          Accordingly, we conclude that the fact that the hospice is named in a will bequest before the judge and has legal standing to assert its right to a distribution does not, without more, create an appearance of impropriety or implicate the provisions of subparagraph 100.4(C)(3)(a).  The judge may thus continue to serve on the board of directors of the hospice, even after the judge becomes aware that a testator named the hospice as a beneficiary in their will.

          For completeness, we address a second, closely related question: whether the judge may continue to preside after learning that the hospice is a beneficiary in the testator’s will.  Absent a challenge to the organization’s bequest or an action by the hospice to assert its rights to a distribution, we conclude that the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) in an estate proceeding, merely because the testator chose to include the hospice as a beneficiary.  Conversely, if the will is subject to objections, or the bequest is challenged, so that the hospice would need to appear to defend the bequest, then the judge faces a direct conflict due to the judge’s role as a director of the hospice and must disqualify from the proceeding (see 22 NYCRR 100.3[E][1][d][ii]).