Opinion 15-202

December 3, 2015

Please Note: While it does not affect the outcome here, see AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge may not participate in a continuing legal education program that (1) is advertised in a way clearly and improperly implying attorneys attending will be placed in a special position to influence the judge and (2) offers an honorarium designed to maximize the number of paying attendees.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3)(b)(ii); 100.4(D)(3); 100.4(H)(1)-(2); Opinions 12-62/12-69; 11-128; 04-111; 00-120.

Opinion:

          A full-time judge was invited to teach in a continuing legal education program entitled “What Civil Court Judges Want You to Know” sponsored by an entity apparently in the legal education business.¹ The judge learned the organization marketed the program to lawyers, without the judge’s knowledge or consent, as “an easy and convenient way” to (a) “spend a day with the judges you come before”; (b) “tailor” and “customize your presentation to each judges’ specific likes and dislikes”; (c) learn “tricks”; and (d) “learn what the specific nuances are for each judge.” Attorneys must pay over $350 to attend, and the entity offers the inquiring judge, as compensation, the choice of an honorarium of $10 per paid attendee or a voucher to attend a future program. The judge asks whether he/she may participate.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance private interests and must not convey or permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge may not be a speaker or guest of honor at a not-for-profit organization’s fund-raising event, subject to exceptions not applicable here (see 22 NYCRR 100.4[C][3][b][ii]) and a full-time judge may not be an active participant in a business entity (see 22 NYCRRR 100.4[D][3]). Subject to these and other limitations, a judge may speak, teach and lecture, provided doing so is not incompatible with judicial office, and does not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office or interfere with the proper performance of the judge’s judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]). A full-time judge may receive compensation for permissible extra-judicial speaking engagements to the extent permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[H][1]). Among other restrictions, the source of such payments must not “give the appearance of impropriety” (id.) and amounts greater than $150 are subject to a reporting requirement (see 22 NYCRR 100.4[H][2]).

         Although judges may speak or appear in a variety of settings, they may not participate in an extra-judicial speaking engagement which involves a “marketing campaign ... that [is] grossly insensitive to the judges’ ethical obligations” (Opinion 12-62/12-69).

         In Opinion 12-62/12-69, the sponsoring organization advertised to attorneys that its program “is a ‘convenient way to spend a day with the judges you come before’ and to ‘tailor’ or ‘customize your presentation to each judge’s specific likes and dislikes.’” The inquiring judges were concerned that the marketing “seems to use the judges as the attraction and inappropriately stresses the importance of getting to know the judges in a setting outside the courtroom” (id.). The Committee observed that had the organization asked the judges their permission to market the program in such manner, the inquiring judges would have emphatically refused (see id.). Thus, the Committee concluded that the judges must cancel their participation in the program and object to it in writing (see id.). The Committee further instructed the judges that their written objections:

should, to the extent that they have not already done so, request a retraction, “advise the [organization] to cease from using from using the advertisement in any form” and “instruct the [organization] not to use [their] name in a similar manner in the future” (Opinion 12-61). Beyond this the inquiring judges need not take any further action, as they “cannot control what the organization chooses to do in response to [their letters], and this Committee has no authority to advise or direct the organization with respect to its actions in this matter”

(Opinion 12-62/12-69).

           Here, the marketing campaign is nearly identical to, and marketed by the same organization as, Opinion 12-62/12-69. Therefore, this judge should similarly decline participation in the program. To the extent practical and appropriate under the circumstances, the judge should likewise object in writing, request a retraction, and advise the organization not to use his/her name in a similar manner in the future (id.).

         The judge should also withdraw from participating in this CLE program due to the specific structure of the offered honorarium (see Opinions 11-128; 04-111). Even where a sponsoring organization is legally organized as a not-for-profit entity, compensation of its instructors based on the number of paid attendees “can only be perceived as commercial in nature” (Opinion 11-128). Thus, the Committee has advised that a full-time judge should not participate in a program that “appears to be deliberately designed to provide instructors with a financial incentive to maximize the number of paying attendees” (id.; see also 22 NYCRR 100.4[D][3]). Here, the organization charges attendees over $350, and the organization is offering compensation to the judge calculated per attendee. The public is likely to perceive this as an attempt to provide the judge with a financial incentive to maximize the number of paying attendees (see Opinion 11-128). Under these circumstances, the organization’s offer of an “alternative” form of compensation (i.e. a voucher for a future program, presumably valued over $350), does not change the overall appearance that the program is essentially commercial in nature and therefore impermissible for a full-time judge.

         Therefore, the inquiring full-time judge may not participate in this program as its marketing campaign and compensation structure contravene the Rules Governing Judicial Conduct.

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         ¹ The entity is legally organized as a not-for-profit organization, but (as discussed later in this opinion) appears to operate as if it were a commercial enterprise. It is not a bar association.