Opinion: 01-89

Digest:  On the facts presented, a judge may serve as a director of a not-for-profit social services agency that provides services on behalf of abused and neglected children, at-risk families, and the mentally retarded, subject to the limitations on such activities set forth in the Rules Governing Judicial Conduct.

Rule:  22 NYCRR 100.4; 100.4(C)(3); 100.4(C)(3)(b)(i), (iv);
           Opinions 89-143 (Vol. IV); 88-145 (Vol. III).


            A judge inquires as to the ethical implications of the judge's serving as a member of the Board of Directors of a particular not-for-profit social services agency. As described in the inquiry, the agency provides emergency residential care for abused and neglected children, operates group homes for mentally retarded adults, and helps at-risk families.

            Section 100.4 of the Rules Governing Judicial Conduct sets forth various limitations on a judge's extra-judicial activities. In general, a judge is obligated to minimize the risk of conflict with judicial obligations. 22 NYCRR 100.4. More specifically, section 100.4(C)(3) states that "a judge may be a member, or serve as an officer, director, trustee or non-legal advisor of a . . . an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit," subject to certain limitations. Here, we note that the court on which the inquirer serves does not have jurisdiction over proceedings relating to child abuse or neglect, or that the judge has any authority to refer the children involved in such proceedings to programs operated by the agency, or that employees of the agency are likely to become involved in proceedings in any court. See Opinions 89-143 (Vol. IV); 88-145 (Vol. III). Thus, there does not appear to be a risk of conflict with the judge's judicial duties. If, of course, the judge should serve in a court, e.g., Family Court, where these matters could well be at issue, a different situation would be presented, as to which it is presently unnecessary for the Committee to express an opinion.

            However, we also note that the obligations of a director of the agency include the support of "fund-raising activities through contribution and cultivation/solicitation of donors" and that a specific duty of a director is to support "fund-raising campaigns/events." Section 100.4(C)(3)(b)(i) of the Rules states specifically that a judge "shall not personally participate in the solicitation of funds or other fund-raising activities." (22 NYCRR 100.4[C][3][b][i]); and subparagraph (b)(iv) forbids "the use of the prestige of judicial office for fund-raising or membership solicitation . . . ." 22 NYCRR 100.4(C)(3)(b)(iv). The judge should make it clear to the agency that his/her services as a director may be restrained by the ethical obligations attendant upon being a judge. With such caveats in place, and assuming the judge and the agency believe the judge could adequately serve as director under such circumstances, the Committee does not regard it as improper for the judge to accept membership on the Board of Directors.