Opinion 09-147

September 10, 2009

Digest:         Except as otherwise provided by the Rules Governing Judicial Conduct, a full-time judge who no longer presides in criminal trials may serve on the Advisory Board of a program sponsored by a not-for-profit organization that offers an alternative to incarceration for certain felony offenders.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.4(A)(1) - (3); 100.4(C)(3(a)(i), (ii); 100.4(C)(3)(b)(i); Joint Opinion 00-101/00-104 (Vol. XIX); Opinions 00-50 (Vol. XIX); 99-171 (Vol. XVIII); 90-25 (Vol. V).

Opinion:

         A full-time judge who no longer presides in criminal trials asks whether it is ethically permissible for him/her to serve on the Advisory Board of a program sponsored by a not-for-profit organization that offers an alternative to incarceration for certain felony offenders. According to the materials the judge provided, the District Attorney’s office, the complainant, the defendant and the defendant’s counsel, and a judge must approve an offender’s participation in the program. The materials further indicate that the board members will meet twice annually and will assist the program through the start-up phase by “helping to shape the program to best meet the needs of our many clients, planning for its growth and replication, connecting us with other colleagues in the field nationally, generating opportunities for funding and fund-raising, and overcoming the inevitable challenges to this unprecedented effort.” The judge advises that he/she will not participate in any fund-raising activities.

         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 judge may engage in extra-judicial activities that 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][1] - [3]). A judge may be a member or serve as an officer, director, trustee or non-legal advisor of an organization devoted to the law, the legal system or the administration of justice, as long as it is not likely that the organization will be engaged in proceedings that ordinarily would come before the judge or, if the judge is full-time, the organization will not be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i], [ii]). Also, while a judge may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, a judge cannot personally participate in solicitating funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]).

         Nothing in the judge’s inquiry indicates that the project participants or administrators are likely to come before the judge or to be regularly engaged in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i], [ii]). And, the Committee previously has advised that a county court judge may serve on the advisory board of a not-for-profit youth shelter in the county where the judge presides as it is not involved in the adjudicative process in terms of ultimate disposition of a criminal case(see Joint Opinion 00-101/00-104 [Vol. XIX]); that a full-time judge may serve on the Advisory Board of a town Youth Court Program as the judge does not refer cases to the Program and is not expected to engage in fund-raising (see Opinion 00-50 [Vol. XIX]); that a judge may serve on the advisory board of a neighborhood crime prevention program as long as the judge gives general advice only, refrains from giving any advice specific to individual incidents which were or might become the subject of litigation, and does not personally participate in any crime watch program as a watcher (see Opinion 90-25 [Vol. V]); and that a judge may serve on an advisory board of a not-for-profit civic organization engaged in the study, research and recommendation of solutions to urban problems, subject to the provisions of the Rules Governing Judicial Conduct relating to extra-judicial activities (see Opinion 99-171 [Vol. XVIII]).

         The Committee is of the view that the inquiring judge also may serve on the advisory board for a program sponsored by a not-for-profit organization that offers an alternative to incarceration for certain felony offenders, as it involves the law, the legal system, and the administration of justice; all sides are involved in approving a defendant’s participation in the program; the judge will not be involved in any fund-raising activities; and the judge’s involvement in the organization does not include participating in the day-to-day functions of the organization.

         Nevertheless, the judge must disqualify him/herself in any case that comes before the judge’s court that involves the project sponsor (see 22 NYCRR 100.3[E][1]).