Opinion 09-48

May 15, 2009

Dear Judge:

         This responds to your inquiry (09-48) in which you ask several questions about the ethical propriety of participating in various extra-judicial activities and whether there are any prohibitions against your law partner appearing in your court. These questions will be addressed seriatim.

            In questions one and two, you inquire whether you may continue to sit on the board of directors of several not-for-profit corporations as well as a children’s foundation. The Rules Governing Judicial Conduct permit a judge to serve as a director of charitable and civic organizations unless it is likely that the organization “will be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). The judge may assist the organization in planning fund-raising and may participate in the management and investment of the organization’s funds. However, the judge “shall not personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]). Subject to these limitations, your continued service to these organizations is permissible.

         In question three, you inquire whether you may continue to participate in assisting the local library organize a 5K road race. You may continue to participate in this event subject to certain limitations and restrictions regarding fund raising (see Opinions 07-17 and 96-147, which explain these limitations).

         In question four, you ask whether there are any limitations to your activities with respect to other civic organizations. However, this question is too vague for the Committee to answer. If there is a particular activity about which you have concerns, please submit a detailed inquiry to the Committee regarding that activity.

         In question five, you inquire as to whether there are any limitations on charitable contributions made by you or through your law office. Judges may contribute to any permissible charity or not-for-profit organization (see Opinions 03-103, 95-131). A charitable donation does not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]) and is, therefore, ethically permissible (see Opinions 03-103 and 95-131). If you are concerned about a particular contemplated donation to a specific entity, please do not hesitate to contact the Committee.

         In question six, you inquire whether your law partner may remain as your partner if he accepts employment as a Conflict Defender appearing in other courts or appearing before your co-judge. Law partners and associates of a part-time judge, who is permitted to practice law, are barred from practicing law before the judge or in the judge’s court (see Judiciary Law §471; 22 NYCRR 100.6[B][3]; see also Opinion 06-98). However, an attorney associated with a part-time lawyer judge is not restricted from practicing law in any other court in the county where the judge’s court is located (see Opinion 08-87). Therefore, in order to remain your partner, your partner cannot practice law in your court before either you or your co-judge.

         In answer to question seven, in order for your partner to appear before either you or your co-judge, you and your partner must sever or dissolve your present legal partnership (see Opinion 06-91). Thereafter, your former partner may appear before your co-judge (id.). However, you are disqualified from hearing your former partner’s cases for a period of two years, subject to remittal (see Opinions 99-72; 91-120; 89-31).

         Enclosed for your convenience are Opinions 08-87; 07-17; 06-98; 06-91; 03-103; 99-72; 96-147; 95-131; 91-120; and 89-31, which address these issues.

                                                 Very truly yours,

                                                 George D. Marlow

                                                 Justice of the Supreme Court

                                                 Committee Chair

Encls.