Opinion 11-93

September 15, 2011

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

Digest:         A judge may review a proposed bar examination question for the National Conference of Bar Examiners and accept an honorarium for performing such work.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3); 100.4(H)(1); 100.4(H)(1)(a)-(c); 100.4(H)(2); Opinions 09-73; 09-09; 05-06.

Opinion:

         A full-time judge asks whether he/she may review a proposed bar examination question for the not-for-profit National Conference of Bar Examiners and accept a $500 honorarium as compensation. The judge states that the National Conference of Bar Examiners developed the question based on some of the judge’s published opinions. The proposed question would appear in the multi-state performance test portion of the bar examination in participating jurisdictions, such as New York.

         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]).

         Although the Committee has not previously considered whether a judge may design or review bar examination questions, the Committee has consistently advised that a judge may serve as an adjunct law professor for a private university (see Opinion 05-06) or teach an ethics course at a private, not-for-profit university’s school of law (see Opinion 09-73). Any such work as a law professor is likely to involve preparation of examination questions to test the students’ mastery of the subject matter.

         In the Committee’s view, review of proposed bar examination questions for the not-for-profit National Conference of Bar Examiners is the type of activity that directly helps improve the legal system and the administration of justice and is, therefore, “not only permissible, but ... expressly encouraged by the Rules Governing Judicial Conduct” (Opinion 09-09; see 22 NYCRR 100.4[C][3]). The proposed $500 compensation is permissible as it does not exceed a reasonable amount and the judge’s work will not be performed for New York State or its political subdivisions (see generally 22 NYCRR 100.4[H][1][a]-[c]). The Committee notes, however, that a full-time judge who receives compensation in excess of $150 for engaging in permissible extra-judicial activity must, at least annually, file a public report in the office of the clerk of the court on which the judge serves or other office designated by law, listing the date, place and nature of the activity for which the judge received the compensation, the name of the payor and the amount of the compensation (see 22 NYCRR 100.4[H][2]).