2014-18 (October 16, 2014)
Service on Board; Rules 1.2, 3.1, 3.7, 3.10 and 3.11
Issue: May a Judicial Official serve as an officer and member of the board of directors of a country club?
Facts: A Judicial Official is a member of a private, not-for-profit country club and has inquired about serving as an officer (Vice President and then President). The duties of the club’s President and Vice President are the same as those normally associated with those offices. The club has been a party to two lawsuits in the past seven years, neither of which is still pending. The club will be conducting a capital campaign among its members in order to raise funds to perform renovations or further development of the club’s property. The Judicial Official would not be a member of the fundraising committee, but as an officer and board member, would be involved in voting on expenditures. The board also votes on membership applications. Prospective members must be sponsored by a current member. If a prospective member does not know a current member, the club’s office will place the prospective member in contact with a current member willing to serve as a sponsor. The club has no restrictions on membership (i.e. no restrictions based upon religion, national origin, race, sex, gender identity or expression, sexual orientation, etc.) and bases membership decisions on the merit of the applicant.
Response: Rule 1.2 of Code states that a judge
should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
Rule 3.1 of the Code concerns extrajudicial activities and sets forth general limitations on such activities, such as not using court premises, staff or resources, except for incidental use or for activities that concern the law, the legal system, or the administration of justice unless otherwise permitted by law, and not participating in activities that (1) interfere with the proper performance of judicial duties, (2) lead to frequent disqualification, (3) appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, or (4) appear to a reasonable person to be coercive.
Rule 3.7 of the Code deals specifically with participation with educational, religious, charitable, fraternal and civic organizations and activities. It provides that, subject to the general requirements in Rule 3.1, a judge may participate in activities sponsored by or on behalf of civic organizations not conducted for profit including, but not limited to “(a)(1) participating in the management and investment of the organization’s or entity’s funds; … (a)(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity: (A) will be engaged in proceedings that would ordinarily come before the judge; or (B) will frequently be engaged in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.” Comment (4) to Rule 3.7 states that “Identification of a judge’s position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge’s title or judicial office if comparable designations are used for other persons.”
Rule 3.10 of the Code prohibits a Judicial Official from practicing law, with exceptions for self-representation and, without compensation, giving legal advice to and drafting or reviewing documents for a member of the judge’s family.
Rule 3.11 of the Code prohibits a Judicial Official from serving as an officer, director, manager, general partner or advisor of any business entity except for a business closely held by the Judicial Official or members or his or her family, or a business entity primarily engaged in investment of the financial resources of the Judicial Official or members of his or her family.
The Committee unanimously determined that the country club is a civic or fraternal organization and not a business entity, and that the Judicial Official may serve as an officer and member of the board of directors of a country club (“Board”), subject to the following conditions:
- The Judicial Official should regularly reexamine the activities of the Board to determine if it is proper to continue his or her relationship with the Board. In addition, the Judicial Official should regularly monitor whether the country club “will frequently be engaged in adversary proceedings in the court of which the Judicial Official is a member or in any court subject to the appellate jurisdiction of the court of which the Judicial Official is a member” and, if so, terminate his or her office and membership on the Board. Rules 1.2 and 3.7.
- The Judicial Official should resign from office and the Board if such service would require the Judicial Official to be involved in frequent transactions with lawyers or persons likely to come before the court on which he or she serves. Rules 3.1 & 3.7(a)(6).
- The Judicial Official should not make any public statement that might reasonably be expected to affect the outcome or to impair the fairness of a matter pending or impending in any court or make any non-public statement that might substantially interfere with a fair trial or hearing. Rule 2.10(a).
- The Judicial Official should not use Judicial Branch resources for activities that concern the country club (except for incidental use). Rule 3.1(5).
- The Judicial Official should not provide legal advice or otherwise engage in the practice of law. This includes, but is not limited to, the following activities: approving or discussing legal action or defense plans, selecting or dismissing attorneys, and drafting bylaws or reviewing them for legal sufficiency. Rule 3.10.
- The Judicial Official may not solicit funds other than from members of the Judicial Official’s family or from judges over whom the inquiring Judicial Official does not exercise supervisory or appellate jurisdiction and the Judicial Official may not solicit membership or sponsor prospective members or vote on membership applications of lawyers who frequently appear in front of the Judicial Official or judges over whom the Judicial Official exercises supervisory or appellate jurisdiction; however, the Judicial Official may assist the country club in planning related to fund-raising and participate in the management and investment of the club’s funds and may have his or her name on letterhead used to solicit funds if other officers names and positions are similarly listed. Rule 3.7 (a) (1), (2) and (3) and Comment (4).
In reaching its decision, the Committee considered New York Judicial Ethics Advisory Opinion 12-177 and its prior opinions in JE 2013-01 and JE 2014-17 which addressed whether a Judicial Official could serve on the board of an out-of-state homeowners association and a Connecticut condominium association, respectively. In each opinion, the Committee concluded that the Judicial Official could serve on the Board subject to various restrictions.
Committee on Judicial Ethics