Opinion 12-187

December 13, 2012

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

Digest:         A judge may not be the keynote speaker, honoree or awards recipient at a for-profit awards banquet sponsored by a commercial legal publisher, but may attend the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(B); 100.4(D)(3); 100.4(D)(5)(h); 100.4(H)(2); Opinions 12-26; 10-59; 05-28; 97-01 (Vol. XV); 93-14 (Vol. X); 90-24 (Vol. V); 87-13 (Vol. I); Joint Opinion 96-143/97-43/97-58/97-66/97-96 (Vol. XV); 1988 Ann Rep of NY Commn on Jud Conduct at 245.

Opinion:

         A full-time judge asks whether he/she may be the keynote speaker, honoree or award recipient at an annual awards event sponsored by a for-profit legal publisher. According to the judge, the sponsor intends to recognize attorneys from across the country for their courtroom achievements as litigators in a specialized area of the law,¹ and to generate a profit from the event. After the event, the sponsor would display photos of the judge speaking at the event on its commercial website.

         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]). Although a judge may speak, write, lecture, and teach, subject to the Rules Governing Judicial Conduct (the “Rules”) (see 22 NYCRR 100.4[B]), a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]; cf. 22 NYCRR 100.4[D][3] [full-time judge may not serve as an active participant of any business entity]).

         The Committee has advised that a judge may not engage in extra-judicial activity that promotes the interests of a commercial enterprise (see Opinions 12-26 [judge may not provide endorsement to be printed on back cover of friend’s non-fiction book even if the endorsement is attributed only generically to a New York State judge]; 05-28 [judge should not permit author or publisher to use judge’s book review to promote sales]; 97-01 [Vol. XV] [judge prohibited from writing foreword to law book which is a commercial publication]; 93-14 [Vol. X] [judge may not author quote about book to be used on book jacket in conjunction with sale of book]; 87-13 [Vol. I] [judge may not authorize use of judge’s letter in advertisement for private research institute]; Joint Opinion 96-143/97-43/97-58/97-66/97-96 [Vol. XV] [judge may not become instructor for a for-profit company which provides pre-law preparatory services for law school applicants]; accord, 1988 Ann Rep of NY Commn on Jud Conduct at 245 [admonishing a judge who participated in a commercial radio broadcast in support of a local sports team and allowed a business owner to display the judge’s name and likeness in an exhibit promoting the business owner’s commercial interests]).² In the Committee’s view, although the extra-judicial activity is related to the law, the judge’s participation on behalf of a commercial entity impermissibly lends the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]; Opinions 05-28; 97-01 [Vol. XV]; 93-14 [Vol. X]).

           It appears that the sponsor believes that the judge is sufficiently well-known that his/her participation as keynote speaker or award recipient would draw an audience for the event. As the event sponsor is a for-profit entity and the event itself is intended to generate a profit, the judge’s participation either as the keynote speaker or an honoree, would lend the prestige of judicial office to advance the private interests of the sponsor, and therefore is impermissible (see 22 NYCRR 100.2[C]; Joint Opinion 96-143/97-43/97-58/97-66/97-96 [Vol. XV] [judge may not be an instructor for a for-profit company that provides pre-law preparatory services for law school applicants]).

         In the event that his/her participation as the keynote speaker is impermissible, the inquiring judge asks in the alternative if he/she may attend the event either as the sponsor’s guest or by purchasing his/her own ticket.

         Under the circumstances presented, the Committee can see no reason to preclude the judge from attending this law-related event.³ And the judge may certainly pay for his/her ticket from personal funds, if he/she wishes to do so.

         As for attending as the sponsor’s guest, a judge may accept a gift if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge (see 22 NYCRR 100.4[D][5][h]). If these conditions are satisfied, the inquiring judge may attend the event as the sponsor’s guest, so long as accepting the gift or attending the event does not create an appearance of impropriety or otherwise violate any provision of the Rules. However, if the value of the gift exceeds $150, the judge must file a report of the gift in the office of the clerk of the court on which the judge serves or other office designated by law, and include the date, place and nature of the gift, as well as the name of the donor and the amount of the gift (see 22 NYCRR 100.4[D][5][h]; 100.4[H][2]).

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     ¹ It appears that the sponsor has asked the judge to deliver the keynote address, at least in part, because the judge has presided in certain prominent cases in this area.

     ² The Committee has advised that judges may enter into contracts with commercial legal publishing companies to write on legal matters (see Opinion 90-24 [Vol. V]; Joint Opinion 96-143/97-43/97-58/97-66/97-96 [Vol. XV]).

     ³ It appears from the inquiry that the event is open to the public and is sponsored by a commercial entity (rather than, for example, a partisan political organization). Nor is there any indication that the judge’s presence at the event would call the judge’s impartiality into question (compare Opinion 10-59 [under the circumstances, a judge may not appear at a candlelight vigil for those affected by domestic violence]).