March 13, 1997
A full-time judge may be a member of a county bar association committee
which makes recommendations to the bar association relating to grants to
be made from a fund established by a private foundation for the purpose
of enhancing the furnishing of pro bono legal services in the county.
22 NYCRR 100.4 (C)(3)(b)(i)(iii);
Opinions 94-51 (Vol. XII);
91-78 (Vol. VII).
A full-time judge inquires whether it is permissible to serve as a member of a five-person committee to be formed by a county bar association in cooperation with a county bar foundation. The committee will be responsible for the administration of the income generated by a substantial endowment which has been, or is expected to be, furnished by a private foundation. The purpose of the donor foundation is to augment pro bono legal services currently offered through various organizations in the county, and to encourage additional involvement in pro bono services by large law firms. It is envisioned that grants will be made from the endowment in order to fund programs designed to meet these goals, and the committee to which the inquiring judge has been invited to belong will make recommendations to the county bar association's board of directors with respect to the approval or denial of applications for such grants.
According to section 100.4 (C)(3)(b)(i) of the Rules Governing Judicial Conduct, a judge who is serving as a member of an organization devoted to the improvement of the law "may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities ..." Also, section 100.4 (C)(3)(b)(iii) states that a judge in connection with serving in such an organization "may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice ..."
In accordance with these rules, the Committee has previously advised that a full-time judge may belong to the board responsible for the administration of a fund which assists in providing legal services to the poor (see, Opinion 91-78 (Vol. VII). Also, the Committee has stated that a part-time judge may serve as the chairperson of the board of directors of a legal assistance corporation, subject to the proper performance of all legal duties (Opinion 94-51 (Vol. XII).
It is unclear from the inquiry whether the potential beneficiaries of the
grants from the endowment might include individual lawyers or law firms,
or whether such lawyers or law firms might be among those appearing before
the inquiring judge. It is thus unclear when, if ever, the judge's participation
in the grant-issuing process might warrant recusal in the circumstances
of a particular case. Subject to this caveat, the Committee believes that
the judge's membership on the committee is ethically permissible.