October 16, 1997
A full-time judge may not participate in the formation and operation of
a for-profit business that intends to offer on-line continuing education
courses to attorneys.
22 NYCRR 100.4(B); 100.4(D)(3); 100.4(H)(1);
Opinions: 95-55 (Vol. XIII); 93-37 (Vol. XI);
92-05 (Vol. IX);
Matter of Intemann, 73 NY2d 80 (1989).
A full-time judge states that a "rule recently adopted by the New York State bar requires new attorneys to attend continuing education courses." The inquirer seeks the advice of the Committee as to whether a judge may properly take part in setting up and operating a commercial enterprise offering on-line continuing education courses. It would be the intention of the judge to join with the other judges in organizing and conducting a for-profit entity that would offer such courses.
Section 100.4(D)(3) of the Rules Governing Judicial Conduct provides that:
(3) A full-time judge shall not serve as an officer director, manager, general partner, adviser, employee or other active participant of any business entity...
In the opinion of the Committee, the proposed venture contravenes this provision. The fact that the enterprise will be engaged in legal education does not alter this conclusion. A full-time judge may, of course, teach, speak, and write on the law, and be compensated for such an activity. 22 NYCRR 100.4(B); 100.4(H)(1); see e.g. Opinions 93-37 (Vol. XI); 92-05 (Vol. IX). However, the proposal before the Committee goes well beyond a discrete and limited event for which a payment is received. Rather, it involves the judge joining together with others in an on-going entrepreneurial profit-making venture presumably intended to be in existence for an indefinite period extending over time. Such activity is not ethically permissible Matter of Intemann, 73 NY2D 580, 581 (1989); Opinion 95-55 (Vol. XIII).