Opinion 24-144
September 12, 2024
Digest: A full-time judge who serves on the board of a not-for-profit private school may not attend or participate in a private mediation concerning a school employee’s potential legal claims against the school.
Rules: 22 NYCRR 100.2; 100.2(A), (C); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(F)-(G); Opinions 22-15(C); 21-166; 20-74; 20-03; 19-30; 12-39; 07-39/07-48; 03-138; 94-06.
Opinion:
The inquiring full-time judge chairs the board of a not-for-profit private school. The school’s attorneys advise that an employee has retained counsel in connection with potential legal claims against the school but may be willing to resolve the matter in private mediation. The judge asks if he/she may attend the private mediation in the capacity of chair.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) but may engage in extra-judicial activities that are compatible with judicial office and that do not cast reasonable doubt on the judge’s impartiality; do not detract from the dignity of judicial office; and do not interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge may be an “officer, director, trustee or non-legal advisor” of a not-for-profit educational organization that is unlikely to be “engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]) and, if the judge is full-time, is also unlikely to be “engaged regularly” in adversary proceedings in any court (22 NYCRR 100.4[C][3][a][ii]). In addition, a full-time judge must not act as an arbitrator or mediator (22 NYCRR 100.4[F]) or practice law (22 NYCRR 100.4[G]).
In general, a full-time judge may serve on the board of a not-for-profit private school 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 Opinions 21-166; 20-74). However, the judge may not be a legal advisor to the board, and thus may not serve on the board’s “audit/risk committee” (Opinions 21-166; 03-138). We have also said a full-time judge should not solicit a legal opinion from an attorney on the board’s behalf because “it would be difficult, if not impossible,” to ignore the judge’s legal judgment and expertise and could create an impression the judge was impermissibly serving as a legal advisor to the board (Opinion 21-166).
If an organization becomes involved in litigation while a judge is already serving on its board, the judge’s obligations may vary. In some circumstances, the judge may need to resign from the board (see e.g. Opinions 22-15[C] [Child Victims Act claim]; 20-03 [arrest and multiple lawsuits]; 19-30 [contested agency proceeding affecting local conserved lands]; 94-06 [multiple litigations due to misconduct of predecessor directors]). By contrast, where a judge on a hospital’s board of trustees learned of an ongoing investigation of the hospital and a proposed resolution of impending charges, and promptly took “affirmative steps to avoid any participation in the matter,” we said the judge need not resign from the board (Opinion 12-39 [noting the matter was “unlikely to become ‘a long, drawn-out cause celebre’” and there was “no indication that the organization will be engaged regularly in litigation”]; see also Opinion 07-39/07-48 [one entity was involved in a contract dispute with its building contractors and another had a property dispute with its statewide branch; full-time judge may remain on each board if he/she “is not required to participate in a pending litigation” and the entity “is not regularly engaged in litigation”]).
Here, the proposed mediation following a demand letter from the employee’s counsel appears to be an attempt at settlement prior to formal litigation. The judge’s attendance or participation at such a mediation carries with it the same risks as service as a member of a board’s audit/risk committee or as liaison to outside counsel—namely, “the appearance that the judge is exercising independent legal judgment … as a legal advisor to the board, which is impermissible for a full-time judge” (Opinion 21-166). Accordingly, the judge may not participate in or attend the private mediation (see also Opinion 12-39 [noting favorably judge’s immediate recusal and abstention from matter under consideration]).