December 9, 1999
A full-time judge should not serve as the prosecutor in a trial to be held
pursuant to the rules of a fraternal organization in which certain members
of the fraternal organization have been accused of illegal conduct.
22 NYCRR 100.2(A); 100.4(C)(3);
Opinion 89-139 (Vol. IV).
A full-time judge requests advice as to whether the judge may serve as the prosecutor in connection with a trial that is to be conducted pursuant to the rules governing a fraternal organization. The judge and other members of the organization have charged the members of the organization's executive committee with unspecified "illegal actions" and with a breach of their fiduciary duty to the membership. The purpose of the trial would be to determine whether the members of the executive committee may be forced to resign.
Section 100.4(C)(3) of the Rules Governing Judicial Conduct states that a judge may be a member of "an educational, religious, charitable, cultural, or civic organization not conducted for profit," subject to the limitations and constraints specified in the Rules. A judge's membership in a fraternal organization is thus subject to the more fundamental and overarching requirement that a judge must at all times act so as to promote "public confidence in the integrity and impartiality of the judiciary." 22 NYCRR 100.2(A).
In Opinion 89-139 (Vol. IV), this Committee stated that a Supreme Court justice could serve as the chair of the committee on law for a fraternal order, provided that the duties of such position were "restricted to intra-organizational matters and the inner workings of the fraternal order." The Committee further stated that the judge would not be permitted to assume such a position if it required the judge to "give legal advice or opinions relating to claims against the organization and possible conflicts between the organization's activities and statutes, rules or regulations . . . ." The Committee thus concluded that a full-time judge is prohibited from acting as a legal advisor to a fraternal organization.
The inquiring judge specifies that the members of the executive committee have been accused of illegal conduct. This Committee therefore concludes that the judge's participation in the trial of these members would necessarily involve the judge in the furnishing of legal advice. Under such circumstances, we advise that the judge should not participate in the proposed trial.