December 8, 2011
Digest: A full-time judge may serve on the Bylaws Committee of a not-for-profit athletic club, provided that the club’s outside counsel handles legal matters for the club and further provided that the judge will not give legal advice or engage in decisions likely to lead to litigation.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3); 100.4(G); Opinions 11-51; 99-183 (Vol. XVIII); 96-60 (Vol. XIV); 94-111 (Vol. XII).
The inquiring full-time judge asks if he/she may serve on the Bylaws Committee of a private not-for-profit athletic club. According to the judge, the Bylaws Committee is not “involved in giving legal advice of any sort,” because “the club has a lawyer on retainer for all legal issues which may arise.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a full-time judge is not permitted to practice law (see 22 NYCRR 100.4[G]), he/she may serve as an officer, director, trustee or non-legal advisor of a fraternal or civic organization not conducted for profit, subject to certain limitations (see 22 NYCRR 100.4[C]).
The Committee has consistently advised that a judge may serve as an officer and board member of a private, not-for-profit recreational organization (see Opinions 99-183 [Vol. XVIII] [golf club]; 96-60 [Vol. XIV] [golf club]; 94-111 [Vol. XII]] [golf and country club]). Such service is, of course, subject to “section 100.4(C)(3) of the Rules Governing Judicial Conduct and all other provisions of the Rules that pertain to off-the-bench activity” (Opinion 99-183 [Vol. XVIII]).
In Opinion 11-51, the Committee advised that a full-time judge may serve on the board of a homeowners’ association, as long as the judge does not give legal advice or engage in decisions likely to lead to litigation. The Committee further advised that “review[ing] the association’s bylaws” would run afoul of that restriction (id.; see also 22 NYCRR 100.4[C] and 100.4[G]).
Here, however, the judge has investigated the activities of the club’s Bylaws Committee, and advises that the Bylaws Committee does not give legal advice because the club has a lawyer on retainer to consider all legal issues. Under the facts presented, therefore, the inquiring judge may serve on the Bylaws Committee, provided that the judge does not give legal advice or engage in decisions likely to lead to litigation (see Opinion 11-51; 22 NYCRR 100.4[C] and 100.4[G]).