September 10, 2009
Digest: A judges' association may permit a vendor to set up a table promoting its court-related service during the association's conference on the premises of a private hotel and may accept compensation from the vendor in exchange for the table, provided that there is no endorsement of the vendor's services by any judge or the association.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1); 100.4(D)(2); 100.4(D)(3); Opinions 08-188; 08-177; 08-35; 05-83; 04-14; 03-107; 02-77; 98-98 (Vol. XVII); 97-16 (Vol. XV); 90-40 (Vol. V).
A judge who is an officer of a judges' association asks whether the association may permit a vendor to station him/herself outside a private hotel meeting room the association has reserved for its use during an upcoming conference. The judge advises that the vendor offers a "telephonic court appearance service... which is funded entirely by participating attorneys, [and] enables attorneys to appear at routine pre-trial conferences via telephone." The judge further advises that a court incurs no charge for this service, which several federal judges in New York presently use. According to the judge, the vendor has "offered to make a monetary donation to the Association" in exchange for using the space, and the judge advises that any such monies received would be used to cover a portion of the association's hotel rental costs.
A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge is specifically prohibited from lending the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).
The Committee previously has advised that a judge may not actively or tacitly promote the products or services of any organization, whether those services would be offered to judges (see Opinion 08-188 [financial products and services]); to attorneys (see Opinions 98-98 [Vol. XVII] [promoting paid attorney enrollment in legal referral service]; 90-40 [Vol. V] [service that traces missing heirs]); to litigants (see Opinions 08-35 [defensive driving program]; 05-83 [structured settlement buyout program]; 04-14 [not-for-profit mediation service]; 03-107 [for-profit mediation service]); or to others outside the court system (see Opinion 97-16 [Vol. XV] [private business seeking to renew contract with municipality]). Even if a judge is purchasing items of nominal value to give as incentives to drug court participants, these items may not bear markings or text that promotes a commercial venture (compare Opinion 08-177 [permitting distribution of items inscribed with the court's name and seal without any vendor's name] with Opinion 02-77 [prohibiting distribution of movie passes or restaurant coupons]).
With respect to products and services offered by a for-profit entity, the rule is particularly strict to avoid any appearance that a judge is lending the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]; compare Opinion 03-107 [judge may not permit for-profit mediation service to place its promotional brochures anywhere in the courthouse] with Opinion 04-14 [judge may permit not-for-profit mediation service to place its promotional brochures in the court's waiting room along with those of other not-for-profit agencies, as long as it is clear that the court is not making any official recommendation]; cf. 22 NYCRR 100.4[D] [full-time judge may not be an "active participant of any business entity"]).
In Opinion 08-188, the Committee advised that it would be improper for a speaker to address judges attending a bar association luncheon about ways for current and retired judges to improve their retirement packages; that they could consult with vendors outside the meeting room about their financial products; and that they would be invited to attend a seminar so that they could be provided with more information about what financial products are available to them locally. In the Committee’s view, even though the inquirer would advise the judges in attendance that no one is obligated to speak to any vendor and that the Judicial Section of the bar association is not endorsing or supporting any financial product, any reference by the speaker to the services he/she can provide or to the presence of other vendors and their services would impermissibly lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]; Opinion 08-188). However, the Committee did not conclude that there is any general prohibition against vendors offering their wares in the general vicinity where judges meet (see id.).
Therefore, the inquiring judge may permit a vendor of court-related services to station him/herself outside the private hotel meeting room the association has reserved for its use during an upcoming conference as it does not in any way imply any official endorsement of the proffered services. Nor does the Committee see any ethical impropriety in the association accepting payment from the vendor for the privilege of doing so or in the inquiring judge announcing the vendor’s presence while speaking to the assembled judges, so long as he/she does not endorse or promote the vendor or the vendor’s services (see 22 NYCRR 100.2[C])1.
1Opinion 08-188 is hereby modified in accordance with this opinion. In particular, the final paragraph of Opinion 08-188 will now state:
A judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). With the disclaimers the inquiring judge proposes, the attorney who has been invited to speak at the luncheon may be permitted to refer briefly to the services he/she can provide and to the presence of other vendors and their services. Permitting the speaker to elaborate further and otherwise promote such services in his/her official remarks to the assembled judges would violate §100.2(C) of the Rules Governing Judicial Conduct, and, therefore, is impermissible (see Opinions 03-107; 90-40 [Vol. V]). The speaker may, however, comment generally about financial planning and retirement.