June 20, 2019
Digest: A part-time judge who serves on a historical society’s board of directors may participate in an audit review process of the organization’s records.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(G); 100.6(B)(1); 100.6(B)(4); Opinions 18-77; 15-149; 12-58; 09-28; 03-138.
A part-time town judge who serves on a not-for-profit historical society’s board of directors asks if he/she may participate in an audit review process of the organization’s records. The judge advises that participation would involve “only review and no fiduciary responsibility.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must conduct his/her extra-judicial activities so that they 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 and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-). However, part-time judges are exempt from certain limitations applicable to full-time judges, including the prohibitions on practice of law and outside employment (see 22 NYCRR 100.6[B]; 100.6[B]).
We have advised that a full-time judge may not serve as a member of a compliance and audit committee of a charitable organization where the duties of the committee include the responsibility of ensuring that the organization’s accounting procedures comply with the law (see Opinion 03-138) or on a non-profit school’s audit committee (see Opinion 15-149). We reasoned that the inquirers were full-time judges prohibited from engaging in the practice of law or rendering legal advice (see Opinion 03-138; 22 NYCRR 100.4[G]).1 However, this prohibition does not apply to part-time judges (see 22 NYCRR 100.6[B]).
Indeed, we have previously advised that a part-time judge may maintain concurrent employment as the chief financial officer/treasurer for an airport authority, whose employment responsibilities included oversight of internal audits (see Opinion 18-77); may serve as president of a not-for-profit fire company and prepare a budget but may not personally present and justify the budget (see Opinion 12-58); and may assist a not-for-profit organization by auditing the organization’s financial records (see Opinion 09-28).
Here, too, we see no conflict or appearance of impropriety with the judge’s proposed participation in the audit review process. Accordingly, we conclude this part-time judge may participate in the audit review process of the historical society’s financial records.
1 While we recognize that performing an audit does not necessarily constitute the practice of law, we believe it would be difficult, if not impossible, for a full-time judge to participate in the auditing process for a not-for-profit organization without creating the appearance that he/she is acting as a legal advisor and implicitly “passing on their legality, albeit in an accounting context” (Opinion 03-138).