Opinion 14-35

March 13, 2014

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

Digest:         A full-time judge may discuss the Bill of Rights at a public school teachers’ conference, and accept an honorarium from a not-for-profit organization.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.4(H); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(1)(a)-(c); 100.4(H)(1)(c)(2); 100.4(H)(2); Opinions 11-93; 98-121 (Vol. XVII); 98-101 (Vol. XVII); 94-74 (Vol. XII).

Opinion:

         A full-time judge who presides over criminal cases asks if he/she may speak about The Bill of Rights at a public school teachers’ conference and accept an honorarium. The judge proposes to speak about “the interpretation and application by the courts of certain constitutional rights provisions,” followed by a question-and-answer period and visits to breakout sessions. It appears from the inquiry that the conference is part of a larger endeavor to develop curriculum materials for a civics program focusing on the judiciary and its importance in daily life. Thus, the judge notes that, during the breakout sessions, teachers “will endeavor to translate my key points into ‘usable insights for use in the public schools.’” The judge says the conference is sponsored by a branch of the State or City University of New York system, but the honorarium would be funded from a grant provided by a not-for-profit organization.

          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 speak, write, lecture, teach and otherwise engage in extra-judicial activities (see 22 NYCRR 100.4[B]) but must ensure that such activities are not incompatible with judicial office, and 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 (see 22 NYCRR 100.4[A][1]-[3]). Subject to certain limitations, a full-time judge may receive compensation for permissible extra-judicial activities (see 22 NYCRR 100.4[H][1]).

         The Committee has previously observed that “a judge could readily be associated with” activities such as “education about the Bill of Rights” (Opinion 98-101 [Vol. XVII]). Indeed, helping educate public school teachers about the Bill of Rights is, in the Committee’s view, the type of activity that helps improve the legal system and the administration of justice. The inquiring judge’s proposed lecture and breakout sessions with public school teachers is, therefore, “'not only permissible, but ... expressly encouraged by the Rules Governing Judicial Conduct'” (Opinion 11-93 [citations omitted]; see also generally 22 NYCRR 100.4[B]; Opinion 94-74 [Vol. XII] [“Educational activities are to be encouraged as exemplary extra-judicial activities....”]).

         A full-time judge may accept an honorarium for a lecture only if it is consistent with the limitations of Section 100.4(H). Although the sponsoring organization is a “college or university that is financially supported primarily by New York State or [one] of its political subdivisions, or [an] officially recognized body of students thereof” (22 NYCRR 100.4[H][1][c][2]), the Committee concludes that the proposed honorarium is permissible, provided that it does “not exceed a reasonable amount” (22 NYCRR 100.4[H][1][a]), because it is funded by a grant from a not-for profit organization (see generally 22 NYCRR 100.4[H][1][a]-[c]).¹

         Furthermore, if the honorarium exceeds $150, the inquiring full-time judge must comply with the applicable reporting requirements (see 22 NYCRR 100.4[H][2]; Opinion 11-93).

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     ¹ The Committee notes that a full-time judge may also accept an honorarium if it is “the ordinary compensation for a lecture or for teaching a regular course of study” at a state-supported college or university (22 NYCRR 100.4[H][1][c][2] [emphasis added]; see also Opinion 98-121 [Vol. XVII]). However, under the circumstances presented, the proposed honorarium does not appear to be “the ordinary compensation for a lecture,” but is instead funded separately by a special grant from a not-for-profit organization.