Opinion 09-131

June 3 - 4, 2009

Digest:         A candidate for part-time judicial office who is employed as Deputy Executive Director and Director of Advocacy of a non-profit organization dedicated to the reform of the state court system, may continue to hold that position if his/her bid for election to judicial office is successful subject to the applicable limitations set forth in the Rules Governing Judicial Conduct.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(i) - (iv); 100.4(G); 100.6(B)(1); 100.6(B)(4); Opinions 09-57; 98-119 (Vol. XVII); 98-74 (Vol. XVII).

Opinion:

         A candidate for judicial office asks whether he/she may continue his/her employment as Deputy Executive Director and Director of Advocacy for a non-profit statewide court reform organization if his/her bid for judicial office is successful. According to the inquirer, his/her responsibilities as Deputy Executive Director and Director of Advocacy include lobbying, educational programs and building relationships with other groups interested in the administration of justice. The inquirer further advises that the organization has supported increasing judicial salaries, judicial selection reform, increasing funding for civil legal services, supporting a statewide public defense commission, support for the Office of Court Administration’s Action Plan for local courts, support for the Judicial Conduct Commission, Family Court reform and diversity in the courts. The organization also runs a court monitoring project.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A part-time judge is permitted to practice law (see 22 NYCRR 100.4[G]; 100.6[B][1]) and may accept private employment provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). A judge also may be a member or serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit (see 22 NYCRR 100.4[C][3])¹ unless it is likely that the organization will be engaged in proceedings that ordinarily would come before the court (see 22 NYCRR 100.4[C][3][a][i]).

         If, as the inquirer indicates, the organization that employs him/her strives to improve the administration and quality of justice, it is the Committee’ s view that the inquirer may continue his/her employment as Deputy Executive Director and Director of Advocacy if his/her bid for judicial office is successful, subject to the limitation set forth above (see id.; 22 NYCRR 100.4[C][3] ). However, if the organization adopts a position on an issue that does not involve the law, the legal system or the administration of justice, the inquirer should seek additional advice from the Committee before publicly advocating that position on the organization’s behalf.

         While a judge may assist such an organization in planning fund-raising and may participate in managing and investing the organizations’s funds, a judge may not personally participate in soliciting funds or in other fund-raising activities on the organization’s behalf (see 22 NYCRR 100.4[C][3][b][i]; Opinion 98-119 [Vol. XVII] [judge should not solicit volunteers to do physical labor; to solicit contributions; or to serve on organization’s committees or Board of Directors of organization]; see also Opinion 09-57 [A judge who serves on the board of a not-for-profit organization may recruit volunteers from within the organization’s membership to participate in a fund-raising or other project sponsored by the organization, but may not personally participate in the solicitation of funds.).

         As a judge, the inquirer 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, but shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iii],[iv]). Nevertheless, as a judge, the inquirer may be listed as an officer, director or trustee of the organization (see 22 NYCRR 100.4[C][3][b][iv]). Also, if the organization includes the judge’s name on its regular letterhead, the organization still may use it for fund-raising or membership solicitation, and, if comparable designations are listed for other persons, the judge’s judicial designation may be listed as well (see id.).

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           ¹ Because part-time judges are permitted to practice law, the Committee has advised that a part-time judge may act as a legal advisor to a not-for-profit 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 opposed to actions pursued solely for the purpose of participating in policy-making decisions of the organization (see Opinion 98-74 [Vol. XVII]).