March 10, 2005
Digest: Under the circumstances, a full-time judge may participate as a speaker or panelist in a Continuing Legal Education program open to all members of the bar sponsored by a for-profit corporation, provided: (1) the judge is not compensated; (2) public comment is not made about any pending or impending proceeding; and (3) the sponsor is not a party in a contested adversarial proceeding presently pending before the judge.
Rule: 22 NYCRR 100.2(C); 100.3(B)(8); 100.4(D)(3). Joint Opinions 96-143 (Vol.XV); 98-121 (Vol. XVII); 99-145 (Vol. XVIII); 00-120 (Vol. XIX); 01-58; 04-15; 04-111; 05-28.
In Opinion 04-15 this Committee held that a Surrogate (and his/her law department staff) could participate as speakers or panelists in a Continuing Legal Education (“CLE”) 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 there is adherence to certain limitations by the judge.
The Surrogate now seeks an opinion as to whether such participation is also permissible 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 judge and the judge’s predecessor have participated in its annual seminar for the past seven years. Neither the judge nor any staff member will be compensated for participating in the program offered to the bar at large.
The Committee is of the opinion that the fact that the corporation is the sole sponsor of the event does not alter the conclusion reached in Opinion 04-15. The situation presented is virtually identical to what was before the Committee in Opinion 00-120 (Vol. XIX), where the sponsor of the CLE program was a national accounting firm and the judge was to be a speaker on a state trial judges’ panel dealing with intellectual property law. We noted that the judge would not be compensated and that there were no matters involving the sponsor pending in the judge’s court.
The situations presented in this inquiry, and in Opinions 04-15 and 00-120 (Vol. XIX), are distinguishable from other kinds of educational activities where this Committee concluded that a judge should not participate. In Opinion 98-121 (Vol. XVII), the inquirer was a faculty member of a for-profit paralegal school and taught a regular course as part of the school’s curriculum, thus involving the judge as an “active participant of [a] business entity” in contravention of section 100.4(D)(3) of the Rules Governing Judicial Conduct. In Opinion 01-58, the judge was asked to lecture on trial advocacy to the associates of a law firm, thus lending the prestige of judicial office to support the private interests of the law firm. 22 NYCRR 100.2(C). And in Opinion 04-111, the sponsor of the event was a for-profit corporation engaged in the business of running such programs and the judge would receive an honorarium based on the number of attendees. In the Committee’s view, that arrangement would have made the judge an active participant in a business entity. 1
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.
In sum, the judge and staff may participate as speakers or panelists, provided: (1) there is no compensation; (2) public comment is not made about any pending or impending proceeding. 22 NYCRR 100.3(B)(8); and (3) the sponsor is not “a party in a contested, adversarial proceeding that is presently being litigated before the judge.” Opinion 04-15.
1. As held in Joint Opinion 96-43, et al. (Vol.XV) judges may be compensated for authoring treatises and the like for for-profit legal publishing companies, without running afoul of the bar to being an active participant in a business entity since such entities are virtually the only available outlets for the publication of such materials. This is not the situation with Continuing Legal Education programs. Similarly, judges may author works of fiction to be commercially published. Opinions 05-28, 99-145 (Vol. XVIII).