September 9, 2021
Digest: A part-time town justice may serve as “Judge Advocate” for the American Legion.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(i)-(ii); 100.4(G); 100.6(B)(1); 100.5(A)(1)(i), (iii); Opinions 21-47; 20-70; 19-77; 09-28.
A town justice asks if it is ethically permissible to serve as Judge Advocate for a local post of the American Legion. As described in the inquiry, the judge advocate “supplies professional advice in the conduct of post business or to procure proper counsel” and “is the guardian of the constitutional form of post government.” The judge advocate “can also supply valuable assistance to other post committees and officers and should maintain contact with local government officials” and commonly helps audit the post’s financial accounts. The Legion’s 2021 officer’s guide exhorts incoming judge advocates as follows:
To you is assigned a most important duty for which your legal training and/or past Legion experience so aptly prepare you. You are the interpreter of the constitution and by-laws of your post, and may at any time be called upon by the commander and other officers and members of the post to rule upon the legality of their actions and decisions insofar as they affect the good of The American Legion. You are also charged with protecting the integrity of our organization and keeping alight the torch of truth and fidelity that symbolizes the high and ennobling ideals under which our great American Legion was founded. Protect that heritage.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]).
In Opinion 09-28, we said that a part-time judge may serve as the Judge Advocate of a local American Legion Post. As we explained (id. [some citations omitted]):
a part-time judge may serve as an officer of a fraternal or civic organization not conducted for profit, unless it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][a][i]). While a full-time judge is precluded from conducting disciplinary hearings in a private capacity and may not serve a fraternal or civic organization as a legal advisor, a part-time judge is not so restricted. Therefore, to the extent that the position of Judge Advocate involves providing legal advice to the American Legion Post, the inquiring part-time judge is permitted to do so (see 22 NYCRR 100.4[G]; 100.6[B]).
We adhere to the view that a part-time judge may serve as Judge Advocate for the American Legion, but we also provide three additional observations and reminders. First, the judge may not be involved in solicitation of funds and may not be “a speaker or the guest of honor” at the Legion’s fund-raising events, if any (see 22 NYCRR 100.3[C][b][i]-[ii]; Opinion 09-28).
Second, the judge may participate in the Legion’s audit process, as we have said that a part-time judge (unlike a full-time judge) may participate in the audit review process of a not-for-profit historical society’s financial records (see Opinion 19-77).
Third, with respect to the judge advocate’s role in maintaining “contact with local government officials,” some caution is in order. While such contacts are not per se violations of any rules (see e.g. Opinion 21-47 [judge may serve as president of a not-for-profit organization that, among other things, “helps coordinate responses to questions about the local military branch”]), we have said a judge must not assume leadership roles in a not-for-profit entity which “engages in advocacy and lobbying with local governments concerning local laws, policies and regulations” (Opinion 20-70). Moreover, a judge must avoid “directly or indirectly engaging in any political activity” except as expressly authorized by the rules (22 NYCRR 100.5[A][i]). For example, a judge may engage in limited political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][iii]).
Otherwise, the duties identified by the inquiring judge appear to be permissible non-political and non-fund-raising activities.