October 25, 2012
Digest: A judge may speak, without compensation, at a free continuing legal education program, which is co-sponsored by a local hospital and a corporate sponsor, and will be held at the corporate sponsor’s offices. However, the judge must not endorse or otherwise advance the private interests of the corporate sponsor, and the judge should not participate if the corporate sponsor is a party in a contested, adversarial proceeding that is presently being litigated before the judge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); Opinions 10-58; 09-200; 05-12; 04-15; 00-120 (Vol. XIX).
A full-time judge asks whether he/she may accept an invitation to give introductory remarks at a continuing legal education program co-sponsored by a local hospital and an investment management firm. The judge states that the hospital developed the program to educate lawyers and estate planners “about palliative and end of life care issues that may arise in their practice,” and the investment management firm’s “sole role is to support the event by providing the program with a location and refreshments.” The program is targeted to attorneys and estate planning professionals, and admission is free. The program will take place at the investment management firm’s offices.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Although a full-time judge may not be an “active participant of any business entity” (see 22 NYCRR 100.4[D]), a judge may nonetheless engage in extra-judicial activities, including speaking engagements, 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 is not incompatible with judicial office (see 22 NYCRR 100.4[A]-; 100.4[B]).
In Opinion 04-15, the Committee advised that a judge and his/her staff may participate as speakers at a continuing legal education program co-sponsored by bar associations, for-profit and not-for-profit corporations, and law firms, where neither the judge nor staff are being compensated and the judge adheres to certain limitations (see also 22 NYCRR 100.4[B]). In Opinion 05-12, the Committee advised that a judge may also participate “where the sole sponsor of the program is a for-profit corporation, i.e., a large investment management firm which is an accredited Continuing Legal Education provider.” The Committee further stated (id.):
We do not believe that the non-compensated participation in a single event sponsored by a for-profit entity necessarily makes the judge an active participant in the business of that entity, which in this case is investment management, and in Opinion 00-120 (Vol. XIX), was the profession of accounting. Nor do we believe that the degree of participation amounts to a lending of the prestige of judicial office to advance the private interests of the entity.
The Committee cautioned each judge not to participate if any sponsor is “a party in a contested, adversarial proceeding that is presently being litigated before the judge” (Opinion 04-15; accord Opinion 05-12; see also e.g. Opinions 10-58; 09-200).
The new factor in this inquiry is that the continuing legal education program’s venue is the offices of the corporate sponsor. Under these circumstances, the Committee believes the program’s location does not, without more, preclude the judge’s participation (see Opinion 09-200). Thus, the judge may participate within the stated limitations in prior opinions (see Opinions 05-12; 04-15). The judge should, however, take particular care to avoid any appearance he/she is endorsing or otherwise advancing the corporate sponsor’s private interests (see 22 NYCRR 100.2[C]). Thus, the judge’s remarks must also be consistent with the Rules Governing Judicial Conduct, including the prohibition on public comment on any pending or impending proceeding in the courts of the United States or its territories (see 22 NYCRR 100.3[B]).