June 16, 2016
Digest: A judge may serve on the advisory board to an academic/clinical unit within a private law school, even though he/she refers litigants to the unit’s treatment programs, provided the judge’s activities on the board are strictly limited to reviewing and evaluating the unit’s educational curriculum.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 15-213; 15-149; 13-155; 09-236; 09-77; 08-103; 07-199; 96-96; 88-151.
The inquiring full-time judge asks whether he/she may join the advisory board for a private law school’s newly created law center for children and families. The advisory board “will be charged with conducting a top-to-bottom review of the existing programs and training offered by the Center.” The Center’s mission is to provide the law school’s “students with the tools they need to directly and effectively represent children and families in crisis.” To that end, the Center offers specialized courses, simulations, client clinics, and seminars to interested law students, with a focus on interdisciplinary training and research; sponsors lectures and conferences to provide advanced training for professionals in the field; and strives to promote “dialogue among academic disciplines, policymakers and the judiciary.” The inquiring judge notes, however, that some of the Center’s “programs are regularly utilized for treatment within the specialty courts in which” the judge presides.
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]). A judge may participate in extra-judicial activities that are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). Generally, a judge may serve as a non-legal advisor to a not-for-profit educational organization (see 22 NYCRR 100.4[C]). However, a judge may not so serve if the organization is likely to “be engaged in proceedings that ordinarily would come before the judge” (see 22 NYCRR 100.4[C][a][i]). In addition, a full-time judge also may not serve as an officer, director, or non-legal advisor to an organization that is likely to “be engaged regularly in adversary proceedings in any court” (see 22 NYCRR 100.4[C][a][ii]).1
While the Committee has advised that judges may not serve on the boards of entities to which they have the authority to make referrals (see e.g. Opinions 15-213, 09-77; 08-103; 96-96), the Center here is an academic/clinical unit within a law school, which focuses on training law students who are interested in representing children on graduation. Thus, provided the judge’s activities on the advisory board are limited to reviewing and evaluating the Center’s educational curriculum, the judge’s role is more similar to serving on a curriculum advisory committee than to serving on the board of directors of a treatment provider.
The Committee has advised that a judge may serve on a curriculum advisory committee (see Opinions 15-149 [judge may serve on the academic affairs committee of a private, not-for-profit school]; 13-155 [judge may serve on a college advisory board to provide “advice on curricula, recruitment and placement”]; 07-199 [full-time judge may serve on a college’s School of Criminal Justice Advisory Board, which “advises the Dean and other college officials on issues about academic standards and proposed changes in the school’s ... programs and curriculum”]; 88-151 [town justice may serve on “the criminal justice curriculum advisory committee of a local community college”]; cf. Opinion 09-236 [judge who is on the advisory board to a university’s law school is disqualified, subject to remittal, from matters involving the law school or the university]).
Accordingly, this judge may serve on the Center’s advisory board, provided his/her activities are strictly limited to reviewing and evaluating the Center’s educational curriculum. The judge must not become involved in supervisory or management issues concerning the treatment clinics. As always, the judge should comply with generally applicable limitations on judicial speech and conduct, including the restrictions on involvement in fund-raising activities (see e.g. 22 NYCRR 100.4[C][b][i]-[ii], [iv]).
1 Here, the judge has confirmed that the Center does not undertake any contested proceedings.