November 1, 2017
This responds to your inquiry (17-134) asking 1) if it is ethically permissible to be a director, board member or president of a domestic not-for-profit corporation, which seeks tax exempt status, to help promote women into leadership positions “across all fields of endeavor” and whether you may educate others about how to raise funds and 2) whether and to what extent you may provide a reference for an attorney who is a former colleague and your ethical obligations in matters involving the attorney and his/her new employer if you do provide a reference.
It is ethically permissible for a judge to be a member of “an organization... dedicated to preserv[ing].... ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]). Thus, a judge may serve as a director, board member or president of a not-for profit civic organization if it is unlikely the organization will engage “in proceedings that ordinarily would come before the judge” and, as a full-time judge, is not likely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][i]-[ii]). The organization’s possible application for, and receipt of, formal tax exempt status will not affect your ability to serve as a director, board member or president (see Opinion 14-117 n 2 [tax exempt status under 26 USC 501[c] “tends to suggest that an organization is not engaged in partisan political activity”).
While a judge may not personally solicit funds or participate in other fund-raising activities, a judge may assist with planning fund-raising as long as he/she does not permit the use of the prestige of judicial office for fund-raising and does not permit his/her name to appear as the author or spokesperson on any fund-raising solicitations (see 22 NYCRR 100.4[C][b][i],[iv]).
Although the Rules Governing Judicial Conduct prohibit a judge from lending the power or prestige of judicial office to advance private interests of others, the Committee has advised that a judge with relevant personal knowledge may write a reference letter to support an employment application. We have also advised that a judge should not actually recommend that the applicant be hired but, rather, limit the letter to the judge’s knowledge of the applicant’s performance and observations of the applicant’s qualities and abilities relevant to the position he/she seeks. Also, a judge may offer his/her opinion of a person’s character based on the judge’s observations or work history if the judge has worked with the person or otherwise has reliable personal knowledge of the person’s expertise. The reference may be written on judicial letterhead, provided the words “Personal and Unofficial” are noted clearly on the stationery.
It is also permissible for the attorney to list the judge’s name as a reference, and the judge may subsequently answer questions from a prospective employer as long as they are limited to matters within the judge’s personal knowledge.
If you do provide a reference, either oral or written and limited to statements of objective facts, you need not disclose and/or exercise recusal in the event the attorney or other employees of his/her new employer appear before you, as long as you can remain fair and impartial.
Enclosed, for your convenience, are Opinions 15-171; 12-14; 11-137; 10-07; 06-156; and 92-55 which address these issues.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court