Opinion 13-29

March 14, 2013

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge may accept an invitation to speak at the annual conference of a not-for-profit association of legal and financial professionals involved in the structured settlement payment transfer process, and may permit the association to pay the judge’s reasonable travel and lodging expenses.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8)-(9); 100.4(A)(1)-(3); 100.4(B); 100.4(H)(1)(a)-(b); 100.4(H)(2); Opinions 12-149; 12-44; 10-24; 09-181; 09-58; 02-20.

Opinion:

         A full-time judge asks whether he/she may participate as a panelist at the annual conference of a not-for-profit association of legal and financial professionals involved in the structured settlement payment transfer process.¹ The panel will consist of three judges who will discuss a topic related to structured settlement annuity transfers. The association proposes to pay for the judge’s travel and lodging expenses for two nights at a location within the United States.

         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]). A judge may engage in extra-judicial activities such as speaking, lecturing and teaching on matters concerning the law, the legal system and the administration of justice (see 22 NYCRR 100.4[B]) as long as the activities do 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 are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge may accept compensation and reimbursement of expenses for permissible extra-judicial activities, provided it does not exceed a reasonable amount or exceed what a non-judge would receive for the same activity (see 22 NYCRR 100.4[H][1][a]). Expense reimbursement is limited to the actual cost of travel, food and lodging reasonably incurred by the judge. Any payment in excess of such amount is deemed compensation (see 22 NYCRR 100.4[H][1][b]).

         On the facts presented, neither the sponsoring organization’s identity or the proposed topic appears likely to compromise the judge’s neutrality, detract from the dignity of judicial office, or otherwise create an appearance of impropriety (see Opinions 09-181 [a judge may speak about family law to employees of an insurance company at an employee assistance program event]; 02-20 [a judge may lecture at a business training workshop offered by a not-for-profit organization on the legal ramifications of operating a business]). Thus, the inquiring judge may participate as a panelist and accept reimbursement of reasonable expenses (see 22 NYCRR 100.4[H][1][a]-[b]; Opinion 10-24).²

         As with other speaking engagements, the judge must not comment on any pending or impending case in the United States or its territories, must not indicate a predisposition to decide a case in a particular way, and must not offer tactical advice (see 22 NYCRR 100.3[B][8]-[9]; Opinions 12-149; 10-24; 09-181; 02-20).

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     ¹ There is no indication in the inquiry that the program’s audience is restricted to advocates for one side of a particular category of case; and, in any event, the inquiring judge proposes to discuss a particular area of law, rather than presiding over a mock trial or other trial advocacy program (cf. Opinions 12-44; 09-58).

     ² If the judge receives compensation exceeding the actual cost of travel, food and lodging expenses reasonably incurred by the judge, and that compensation “in aggregate for this event, exceeds the $150 threshold,” the judge must file appropriate disclosures (Opinion 10-24, citing 22 NYCRR 100.4[H][2]).