October 27, 2011
Digest: A full-time judge who is a member of a homeowners’ association may not write an article for the association’s newsletter advising members of their legal obligation to obtain a specific type of insurance for their home pursuant to the offering plan and the association’s rules.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3); 100.4(G); Opinions 11-143; 11-51; 98-93 (Vol. XVII); 98-44 (Vol. XVI); 95-133 (Vol. XIII); 89-133 (Vol. IV); 88-119 (Vol. II); 88-98 (Vol. II).
A full-time judge owns a home which is, along with other homes in the same development community, “generally advertised [as] and understood to be a condominium.” However, the judge states that the offering plan establishes that the homes are not legally organized as a condominium. Under the terms of the offering plan and the rules of the homeowners’ association, each homeowner must provide the association’s board of directors with proof of a particular type of insurance annually. At the association’s annual meeting, a board member asked the judge to write an article for the association’s newsletter, “explaining the differences between [the association] and a condominium and discussing and explaining the insurance requirements contained in the plan and the [association’s] rules,” in order to “advise and educate” homeowners on these issues. The judge believes that “significant confusion exists regarding the insurance requirements” and asks whether he/she may write the article as requested.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote the public’s confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a full-time judge may not practice law (see 22 NYCRR 100.4[G]), a judge may be a member of, or serve as a non-legal advisor to, a civic organization not conducted for profit (see 22 NYCRR 100.4[C]).
The Committee has advised that a judge who is a homeowner may serve as a member, officer or non-legal advisor of a homeowners’ association or residential cooperative (see Opinions 11-51 [member of board of directors]; 98-93 [Vol. XVII] [treasurer and member of board of directors]; 98-44 [Vol. XVI] [officer or member of board of directors]; 95-133 [Vol. XIII] [member of steering committee]; 89-133 [Vol. IV] [president of board of directors]; 88-119 [Vol. II] [member of board of directors]; 88-98 [Vol. II] [noting that a residential cooperative is “nearly analogous to a civic organization, being a form of homeowners’ association” and, therefore, judge may serve on cooperative’s board of directors]).
In doing so, however, a judge must not provide investment advice (see e.g. Opinions 98-93 [Vol. XVII]; 98-44 [Vol. XVI]) or participate in decisions likely to lead to litigation (see e.g. Opinions 11-51; 98-44 [Vol. XVI]). Because a full-time judge may not engage in the private practice of law (see 22 NYCRR 100.4[G]), a full-time judge also may not provide legal advice (see Opinions 95-133 [Vol. XIII]; 89-133 [Vol. IV]); review the association’s bylaws (see Opinion 11-51; but see Opinion 11-143 [judge may serve on bylaws committee, subject to certain restrictions]); or serve on the legal and admissions subcommittee of the association (see Opinion 88-119 [Vol. II]).
In the Committee’s view, the proposed article would contain legal advice because it would advise other homeowners about the legal form of their unit (i.e., a cooperative instead of a condominium) and the type of insurance they must purchase for their units to comply with their legal obligations under the offering plan and the association’s rules. Therefore, it is not ethically permissible for the judge to write the proposed article (see 22 NYCRR 100.4[G]; Opinions 11-51; 95-133 [Vol. XIII]; 89-133 [Vol. IV]; 88-119 [Vol. II]).