January 26, 2012
Digest: Under the circumstances presented, a full-time judge may not teach a continuing legal education program for an organization that is sponsored by and closely affiliated with a law firm, where the judge would be compensated based on the number of attendees.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3)(b)(ii); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); Opinions 09-92; 05-12; 04-111; 01-58 (Vol. XX).
A full-time judge asks if he/she may teach continuing legal education (CLE) programs through an accredited CLE provider, and “work with other judges to help them give CLEs through” the same provider, in return for an honorarium. The judge’s honorarium for giving CLEs would not be fixed in advance, but would instead be in some way “based [on] the number of attendees,” calculated in a manner which the inquiring judge does not explain.1 The judge does not state whether the honorarium “for coordinating the other judges’ CLEs” would be a fixed or variable amount, but the judge states that the compensation would be for helping other judges to “prepare the forms that the New York State CLE Board needs to approve their CLEs” and helping them with their “topics, written materials, and PowerPoint demonstrations.” The CLE provider’s website reveals that there is a charge for the CLE program, and that "[a]ll profits go to” the organization.
The judge states that the CLE provider is legally organized as a not-for-profit educational entity. Nonetheless, the judge states that the entity “is sponsored by” a law firm, has the same street address as the firm, “is located in [the firm]’s office,” and would use either the firm’s conference room or “space [the firm] would rent” for CLE programs. The entity’s president is a partner of the sponsoring law firm. A copy of the entity’s newsletter, provided by the inquiring judge for the Committee’s review, indicates that “[t]his publication is made possible by a generous grant from” the sponsoring law firm. The judge states that the judge already disqualifies him/herself “from hearing any case involving” the sponsoring law firm.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities, as long as doing so does not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and the activity is not incompatible with judicial office (see 22 NYCRR 100.4[A]-). As a general matter, judges may teach, write and speak on matters concerning the law, the legal system, and the administration of justice (see 22 NYCRR 100.4[B]) and may receive compensation for such engagements to the extent permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[H]). However, a judge may not be a speaker at a not-for-profit organization’s fund-raising events, subject to exceptions not applicable here (see 22 NYCRR 100.4[C][b][ii]) and a full-time judge may not be an active participant in a business entity (see 22 NYCRR 100.4[D]).
Although a wide variety of teaching, speaking and lecturing engagements are permissible, the Committee has advised that a judge should not teach legal writing and advocacy skills exclusively to one law firm’s associates as part of that law firm’s CLE program (see Opinion 01-58 [Vol. XX]), and a full-time judge may not accept compensation for teaching at a CLE program sponsored by a for-profit corporation, although the judge may do so without compensation (see Opinion 05-12).
In Opinion 04-111, a full-time judge was invited to serve as a faculty member at a CLE program sponsored by a commercial business entity. The company proposed to “charge attendees for the program and ... provide an honorarium to the presenters based upon the number of paid attendees” (see Opinion 04-111).
Here, too, there is a charge for the CLE program, and the judge would be compensated based on the number of paid attendees. Although the CLE provider is legally organized as a not-for-profit educational entity, the arrangement the inquiring judge has described can only be perceived as commercial in nature. The line between the CLE provider and the commercial law firm which is its sole sponsor is indistinct, at best, given the many indicia of close affiliation noted above. And the compensation structure for instructors removes any doubt as to the program’s commercial model, as it appears to be deliberately designed to provide instructors with a financial incentive to maximize the number of paying attendees. Under the circumstances presented, the judge should not participate in the program (see Opinion 04-111).2
In light of this conclusion, the Committee need not reach the question about whether the inquiring judge may accept compensation for coordinating other judges’ participation in the program.
1The Committee notes that the inquiring judge has provided no details of how the attendance-based honorarium would be calculated. It is conceivable that such an honorarium might, in some circumstances, “exceed a reasonable amount” (see 22 NYCRR 100.4[H][a]).
2Where, as here, there is a charge for attending a CLE program and “[a]ll profits” go to the sponsoring organization, a judge would be well-advised to make inquiries to ensure that the event is not intended primarily as a fund-raiser (see 22 NYCRR 100.4[C][b][ii] [a judge may not be a speaker at a not-for-profit organization’s fund-raising events, subject to exceptions not applicable here]).