Opinion 25-76

May 15, 2025

Digest:  A court attorney-referee who handles housing matters may serve on the board of a local not-for-profit charitable organization focused on community health, and may participate in awarding grants to organizations and individuals that do not appear before him/her.

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.6(A); Opinions 24-48; 22-15(C); 20-174; 20-77; 20-47; 20-14; 19-141; 15-223; 12-39.

Opinion:

          A court attorney-referee who primarily handles housing matters asks if he/she may serve on the board of a local not-for-profit charitable organization focused on community health.  To further its goals, the organization “issues grants and partners with local organizations.”  The organization is funded by a private endowment and does not require board members to solicit funds.  It “does not engage in politics, fundraising, or lobbying,” but provides grants to other organizations which do.  In order to avoid any appearance of impropriety, the referee would recuse or abstain from participating in grants for (a) legal service providers that frequently appear before him/her and (b) a housing organization that frequently provides services to litigants who appear before the referee.  The referee also asks if he/she would need to resign from the board if the organization were named as a party in a lawsuit.

          Because court attorney-referees “perform judicial functions within the judicial system,” they must “comply with” the Rules Governing Judicial Conduct “in the performance of their judicial functions” and must otherwise “so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]).  A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge may engage in extra-judicial activities that are compatible with judicial office and do not cast reasonable doubt on the judge’s impartiality, detract from judicial dignity, or interfere with the performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  In general, a full-time judge may serve as an officer or director of a not-for-profit charitable or civic organization, provided the organization is unlikely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]) or to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]).  While a judge “may assist such an organization in planning fund-raising,” a judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]), nor “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]). 

          Although a judge may not personally solicit funds, we have advised that a judge may serve on the board of a not-for-profit arts foundation that reviews grant applications and awards grants to promote performing arts (see Opinion 20-47), may serve as a trustee of “private not-for-profit foundations which make grants to other not-for-profit organizations” (Opinion 20-174), may serve “on a not-for-profit endowment advisory committee which awards grants to a variety of not-for-profit community groups” (Opinion 24-48), and may be the president of a bar association’s foundation “that awards grants for law-related purposes” (Opinion 19-141).    We note that a judge may make charitable donations to not-for-profit entities that regularly appear before the judge or to not-for-profit organizations that seek to influence social policy (see Opinion 15-223).  In Opinion 20-77, however, we advised that a full-time judge may serve on a not-for-profit advisory board that will make recommendations about funding local entities in serious economic jeopardy, provided his/her involvement is limited to reviewing and making recommendations on applications from not-for-profit entities that are not likely to appear before him/her.

          As nothing in the inquiry suggests that the organization here accepts court referrals or is likely to appear regularly in any court, we conclude that the referee may serve on its board of directors, subject to generally applicable limitations (see e.g. Opinion 20-14).  We further conclude the referee may be personally involved in approving grants, but should not participate in grant decisions for individuals or organizations that regularly appear before him/her in order to avoid even the appearance of impropriety. 

          As for the referee’s second question, we decline to speculate on the referee’s possible obligations if the organization becomes involved in a hypothetical future lawsuit.  The answer will depend on the specific facts and circumstances presented (see e.g. Opinions 22-15[C]; 12-39).