March 5, 2007
Digest: Judges may accept a bar association membership that is offered free to the judiciary.
Rules: 22 NYCRR 50.1(I)(C); Part 100, Preamble; 100.4(C)(3); 100.4(D)(5)(e); Opinions 03-01; 98-149 (Vol. XVII); 98-50 (Vol. XVI).
An administrative judge seeks the Committee’s advice as to whether judges are prohibited from accepting free memberships in bar associations or other lawyers’ organizations. The inquirer notes that section 50.1(I)(C) of the Rules of the Chief Judge, which bars court employees from accepting gifts from attorneys or other persons having or likely to have any official transaction with the court system, has been interpreted by the Office of Court Administration to prohibit court employees, including law secretaries, from accepting free memberships in such organizations, when others are required to pay. 22 NYCRR 50.1(I)(C). The judge seeks the Committee’s opinion “as to whether there is a similar prohibition barring judges from accepting membership in such organizations, without payment of a fee.”
The Committee has previously addressed the question of judicial membership in bar associations but has not directly considered the question of free membership. In Opinion 98-149, the inquiring judge informed the Committee that he/she had received an offer of “free judicial membership” from the American Trial Lawyers Association, but only asked whether membership in that particular organization was proper in light of its lobbying activities, and the fact that “many people view (the organization) as a plaintiff’s lawyers association.” Opinion 98-149. The Committee stated that the organization was clearly a bar association, regardless of its plaintiff focus, and thus was to be deemed an organization devoted to the “improvement of the law, the legal system and the administration ofjustice.” See 22 NYCRR 100.4(C)(3) (permitting a judge to be a member of such groups); see also Opinions 03-01; 98-50 (Vol. XV).
Here, unlike Opinion 98-149, where we were asked if the membership itself was permissible, we are directly confronted with the question of whether a judge may accept a free membership.
In our opinion, judges may accept free membership from bar associations that offer such membership to the judiciary. Section 100.4(D)(5)(a) of the Rules Governing Judicial Conduct provides the basis for this conclusion. As an exception to the general rule barring judges from accepting gifts or favors, that section provides, in part, that judges may accept a gift or favor where it constitutes “an invitation to the judge and the judge’s spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice.” 22 NYCRR 100.4(D)(5)(a).
We conclude that membership in a bar association constitutes engagement in an activity devoted to the “improvement of law, the legal system and the administration of justice,” and therefore falls within the exception noted in this provision. Id. To hold otherwise would allow a judge to accept individual, discrete invitations to each and every event or function of a bar association without charge, as a non-member, while requiring payment for membership itself, which encompasses participation in all such functions and events. In our view, this interpretation would violate the spirit of this provision and, indeed, would violate the basic precept expressed in the Preamble to the Rules, that the Rules Governing Judicial Conduct are rules of reason. 22 NYCRR 100, Preamble. Thus, we advise the inquirer that it is ethically permissible for judges to accept membership in a bar association, where the association offers this membership free to the judiciary.