May a judge serve on the board of a local nonprofit mental health provider whose staff do not appear before the judge or receive court referrals?

Plain-English summary

A judge asked about serving on the board of a local nonprofit that provided outpatient mental health services, including substance abuse counseling and emergency services. The judge said the court had no connection with the organization and made no referrals to it. Source: Opinion 12-12, p. 1

The committee applied Rule 21-307(A)(5), which permits service as a nonprofit civic organization's director unless the organization is likely to appear in proceedings ordinarily before the judge or frequently litigate adversary matters in the judge's court. It read the provision to cover any nonprofit. Because the provider and its staff did not appear before the court or receive referrals, the committee saw no conflict under that rule. Source: Opinion 12-12, p. 1

Rule 21-301 also prohibits outside activities that lead to frequent disqualification or appear to undermine impartiality. The committee found no problem on the described facts, but cautioned that appearances by the provider or staff as litigants or witnesses, or court referrals to them, would require the judge to reconsider continued board service. Source: Opinion 12-12, p. 2

In practice

The opinion's permission depended on the separation between the court and the mental health provider. The committee identified new litigation, testimony, or referrals involving the organization or its staff as changes requiring renewed analysis. Source: Opinion 12-12, pp. 1–2

Common questions

Q: Did the committee permit the nonprofit board position?

A: Yes, under the stated facts, because the organization and its staff were not involved in the judge's cases or referrals. Source: Opinion 12-12, pp. 1–2

Q: Does Rule 21-307(A)(5) reach a mental health nonprofit?

A: The committee said that its reference to a nonprofit civic organization included any nonprofit organization. Source: Opinion 12-12, p. 1

Q: What later events would change the analysis?

A: The committee named appearances by the provider or its staff as litigants or witnesses, and referrals from the court, as reasons to analyze whether the judge could continue serving. Source: Opinion 12-12, p. 2

Background and rules framework

The committee considered board service under New Mexico Code of Judicial Conduct Rules 21-307(A)(5) and 21-301(B)–(C). It applied both rules to the judge's stated lack of case or referral connections with the nonprofit. Source: Opinion 12-12, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-307(A)(5) and 21-301(B), (C). Source: Opinion 12-12

See also

• NM Judicial Ethics Op. 19-03: Family Foundation Board
• NM Judicial Ethics Op. 13-02: Electric Cooperative Trustee

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 12-12

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

November 15, 2012

Re: Judicial Advisory Opinion No. 12-12

You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code permits you to serve on the board of directors of a private, non- profit comprehensive mental health organization that provides mental health care in the area that is served by your court. The organization has a professional staff that provides outpatient counseling services that include services for alcohol and substance abuse, emergencies, prevention and education, and youth training. You have advised the Committee that your court does not interconnect with the organization in any manner and does not make referrals to the organization.

Under Rule 21-307(A)(5) NMRA of the Code of Judicial Conduct, a judge may serve as a director of a non-profit civic organization, “unless it is likely that the organization... (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[.]” The Committee views this rule to include any non- profit organization. Because you have advised the Committee that the organization or its counselors or staff do not appear in proceedings before your court and are not provided referrals by your court, the Committee does not believe that your participation as a director would conflict with this rule.

Rule 21-301 NMRA addresses extra-judicial activities in a more general manner. It permits a judge to engage in such activities, provided that the judge does not, as related to your inquiry, participate in activities that “will lead to frequent disqualification of the judge” or “would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” Rule 21-301(B), (C). Again, because of your described lack of involvement of the organization or its staff in your court’s cases, as litigants, witnesses, or as resources, the Committee does not believe that Rule 21-301 impedes your ability to serve as a director of the organization.

Thus, under the facts that you have provided, the Committee does not believe that the Code restricts your participation on the board of directors of the non-profit organization that you have described. We caution, however, that, if the organization, its counselors, or its staff begin either to appear as litigants or witnesses in your court

or to receive referrals from you court, you will need to analyze whether you can continue to serve as a director.

Very truly yours,

James J. Wechsler
Chair

JJW:ow

cc: Hon. Kevin L. Fitzwater
Hon. Freddie J. Romero
Paul L. Biderman
Professor Robert L. Schwartz