Opinion 95-123

September 21 , 1995


Digest:         (1) A judge may serve on a committee of a diocese of the Episcopal Church which reviews diocesan canon law and drafts revisions and may also participate in a fundraising event to the extent of wrapping presents for children and escorting underprivileged children who are guests of the church. (2) Receipt of fixed severance payments from the judge's former law firm over a five year period is ethically permissible.


Rule:            22 NYCRR 100.5(b)


         A full-time judge seeks the opinion of the Committee concerning the judge's service on behalf of the Episcopal diocese of a particular city. Prior to becoming a judge the inquirer had served as legal advisor to the Bishop. The judge resigned from that position upon ascending the bench, and now asks whether continued service to the Diocese is permissible in the following respects:

         (1)     As a member of the Committee on Canons of the Diocese. That committee reviews Diocesan canon law and drafts appropriate revisions. As stated by the judge, "Its sphere of activity is purely canonical and it does not give advice on any matter of civil law."

         (2)     As a member of the Standing Committee of the Episcopal diocese of the particular city. That committee advises the Bishop "on matters relating to the ecclesiastical governance of the diocese" and includes such matters as approving candidate for ordination and advising the Bishop on questions of Diocesan organization. However, the judge notes that:


... under a recent amendment to the Canons of the National Episcopal Church, the Standing Committee is now the body that issues a presentment (the equivalent of an indictment) against a member of the clergy who is accused of a violation of canon law. In exercising this function, the Standing Committee acts, in effect, as a Grand Jury. It must review the result of the investigation conducted by the Church Attorney (prosecutor) and make a finding as to whether there is a probable cause to conclude that canon law has been violated by the accused. The Standing Committee plays no judicial role in the proceedings; that function is remitted to an Ecclesiastical Court.

         (3)     As a participant in a fund-raising Christmas fair at the judge’s church known as Santa Saturday, to the extent of wrapping presents that children purchase for their parents and acting as escort for underprivileged children who are invited to the event as guests of the church.

         At issue is the scope of Rule 100.5 (b) of the Rules of the Chief Administrator which expressly permit a judge to serve as an “officer, director, trustee or nonlegal advisor of an educational, religious, charitable fraternal or civic organization.”

         In the opinion of the Committee service as a member of the Committee on Canons, as described by the inquirer, is permissible. As noted by the judge, that Committee does not render legal advice on matters of civil law. In addition, the judge may also participate in the event known as Santa Saturday to the extent specified in the inquiry. In the view of the Committee, such activities do not run afoul of the prohibition against solicitation of funds as provided for in section 100.5 (b)(2) of the Rules.

         However, with respect to participation in the issuance of charges against members of the clergy who are accused of violations of canon law, which is one of the functions of the Standing Committee, the Advisory Committee was unable to reach a statutory majority.

         Finally, the judge states that under the partnership agreement of the law firm of which he/she was a partner, certain fixed severance payments are due the judge, and are to be paid by the firm over a five year period. The judge asks whether this arrangement is ethically permissible. The Committee is of the opinion that such an arrangement does not violate any ethical rule.