Opinion 12-39

March 8, 2012


Digest:         A judge who serves on a hospital’s board of trustees, and who, on learning of an ongoing investigation of the hospital and a proposed resolution of certain impending charges, has taken affirmative steps to avoid any participation in the matter, need not resign from the board.


Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(A)(1)-(3); 100.4(C)(3)(a)(I)-(ii); Joint Opinion 07-39/07-48; Opinion 01-72 (Vol. XX).


         A full-time judge who serves on the board of trustees of a not-for-profit hospital advises that he/she has recently learned from the hospital’s president and outside counsel that the local district attorney’s office has been investigating allegations concerning certain practices or procedures at the hospital, and that outside counsel has negotiated a proposed resolution to the matter. Although no court case is currently pending, the judge understands that the district attorney’s office plans to file “an accusatory instrument charging a non-criminal violation” in the judge’s court, followed by an adjournment in contemplation of dismissal. The judge thus anticipates that the matter is unlikely to become “a long, drawn-out cause celebre.” The judge states that he/she “immediately recused” him/herself from the board’s consideration of the proposed settlement and “notified the [p]resident and the [c]hairman of the [b]oard of my recusal and abstention from participation in this matter,” but asks whether he/she must take any further steps under the Rules Governing Judicial Conduct.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (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]). In addition, a judge may be a member or serve as a trustee of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit, as long as it is not likely that the organization will be engaged in proceedings that ordinarily would come before the judge and, 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]). A judge is also disqualified from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that a judge may serve on the board of a not-for-profit hospital, subject to the same limitations that apply to a judge’s service as an officer or director of other not-for-profit organizations (see Opinion 01-72 [Vol. XX]; 22 NYCRR 100.4[C][3][a][I]-[ii]). For example, there should be disqualification, subject to remittal, “in the event the hospital appears as a party or is otherwise involved in a case before the judge, since that is a circumstance in which the judge’s impartiality might reasonably be questioned” (Opinion 01-72 [Vol. XX]; 22 NYCRR 100.3[E][1]; 100.3[F]).

         In Joint Opinion 07-39/07-48, a judge asked whether he/she must resign from the board of trustees of two civic or fraternal not-for-profit organizations, where “[e]ach organization has commenced litigation, one against various building contractors, arising out of the construction of its building a few years earlier, and the other, a local branch of a statewide organization, against its statewide office over title to local assets.” The Committee advised that the judge should resign “if it becomes necessary for [the judge] to participate in the litigation” (id.). Otherwise, where “there is no indication that either organization will be engaged regularly in litigation or that the judge will be required to participate in the litigation, the Committee advised that the judge need not resign from ... [either board] during the pendency of the litigation” (id.).

         Here, too, the Committee concludes that there is no indication that the organization will be engaged regularly in litigation or that the judge will be required to participate in any litigation that occurs involving the organization. To the contrary, the judge was not involved in, or even aware of, the district attorney’s investigation of the hospital, and has already taken affirmative steps to avoid any participation in reviewing and approving the proposed settlement of the impending charges. Under the circumstances presented, there is currently no conflict of interest, and the judge may continue to serve as a trustee of the board (see Joint Opinion 07-39/07-48).

         Of course, if the accusatory instrument is filed in the judge’s court, and the matter is assigned to the judge, the judge is disqualified from presiding over the matter, even to grant an adjournment in contemplation of dismissal (see 22 NYCRR 100.3[E][1]; Opinion 01-72 [Vol. XX]). The judge may, if he/she wishes, consult with his/her administrative judge in advance about the anticipated filing.