Opinion: 98-74
June 19, 1998
Digest:    A part-time judge may not serve on the board of directors of the Right to Life of _________ County, Inc., but may serve as its legal advisor.

Rule:    22 NYCRR 100.1; 100.2(A); 100.4(A)(3).
            Opinion 97-54; 95-144 (Vol. XIII)


            A part-time judge inquires whether he/she may serve on the board of directors of the Right to Life of ________ County, Inc., or as legal advisor to the board. The organization is a not-for-profit corporation.

            The judge has provided the Committee with a copy of the organization's constitution and by-laws. Among the organization's purposes and objectives is the advocacy of the "right to life of pre-born children;" the promotion of "social, cultural, legal and religious reforms designed to insure the right to life and human dignity to pre-born children;" and the providing and development of programs and information to the general public related to such matters.

            The Committee faced a similar inquiry in Opinion 97-54 in which it advised that a judge should not be a member of an organization that seeks to ensure the accessibility of legal abortions and that engages in lobbying and other activity in furtherance of such goals. As stated by the Committee:

            The Committee has previously stated that it
is impermissible for a judge to be a member of an
organization that is involved in "matters of substantial
public controversy" Opinion 95-144(Vol. XIII). There
are, of course, few, if any public issues more controversial
than abortion. Thus, in the opinion of the Committee, the
"likelihood of significant public controversy" (Opinion 95-144),
renders membership in the organization inappropriate. Such
membership could well "cast reasonable doubt on the judge's
capacity to act impartially as a judge. 22 NYCRR 100.4(A)(1).
            Organizations characterized as "right to life" and "pro-choice" frequently appear before State and Federal courts and legislative bodies as litigants and as lobbyists, involving such matters as the right to demonstrate; the constitutionality of statutes; the advisability of new legislation, etc.. Although this organization would not normally appear before the inquiring judge, some of the above-mentioned activities could, in fact, bring its members before the court. In any event, the organization's involvement in the highly controversial and politicized issues would raise a substantial problem for a judge with respect to participation as one of its policy-makers. In the Committee's view, the judge's participation as a member of the organization's board of directors might reflect adversely upon the judge's impartiality or interfere with the performance of his/her judicial duties. 22 NYCRR 100.1, 100.2(A); 100.4(A)(1), Opinions 97-54, 95-144 (Vol. XIII). It is not necessarily the actual lack of impartiality or the actual interference with the performance of judicial duties that are determinative of the propriety of the situation in question but, rather, the possible appearance of partiality or interference with the performance of judicial duties that is the basis of the prohibition. Accordingly, it is the opinion of the Committee that the judge should not serve on the board of directors of this organization.

            However, it is also the Committee's opinion that since part-time judges are allowed to practice law, the judge may act as legal advisor to the organization as long as an attorney-client relationship exists and the judge's actions are clearly identifiable as those of an attorney representing a client, as contrasted with actions pursued solely for the purpose of participating in policy-making decisions of the organization.