October 9, 2020
This responds to your inquiry (20-109) asking whether, as a full-time judge, you may serve on the board of a not-for-profit organization involved in supporting the historic preservation of buildings, making recommendations for the establishment of historical districts, granting support for rehabilitation projects, and providing loans to other organizations with similar goals. You indicate that the sources of funding will largely come from grants and payments from borrowers. In addition, you advise that you will not be involved in any fund-raising activities nor will you provide any legal advice to the organization. Further, it is unlikely that the organization would appear before you in any adversarial proceeding.
The Rules Governing Judicial Conduct provide that a judge may engage in extra-judicial activities and serve as an officer or director of a not-for-profit civic or charitable organization, subject to certain limitations (see e.g. 22 NYCRR 100.4[C]). For example, full-time judges must not serve as officers or directors of organizations that are likely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][ii]) [emphasis added]). This is in addition to the prohibition, applicable to all judges, on serving on the board of entities likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][a][i]). Thus, in accordance with the Rules, the Committee has previously advised that a full-time judge may serve as president of a coalition of community organizations created to preserve an historical site and participate in not-for-profit land conservancy organizations and local land or economic development corporations.
Accordingly, you may serve on the board of this organization subject to the public comment rule (see 22 NYCRR 100.3[B]) and the prohibitions against fund-raising and providing legal advice. If this organization is (or becomes) regularly engaged in litigation in any court, whether arising from its lending activities or regarding its mission or funding sources, you must resign from the board.
Enclosed, for your convenience, are Opinions 19-30; 16-51; 15-15 and 94-65 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice (Ret.)
Appellate Div. First Dep’t
Margaret T. Walsh Supreme Court Justice