Opinion 15-57

March 19, 2015

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

Digest:         A judge may accept an invitation to attend and participate in an out-of-state conference on women and justice, co-sponsored by a law school, a limited liability company, and a law firm, and may accept the law school’s offer to fund his/her accommodations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(D)(5); 100.4(D)(5)(a); 100.4(H)(1); 100.4(H)(1)(a)-(c); 100.4(H)(2); Opinions 13-136; 13-45; 12-167; 00-100.

Opinion:

         The inquiring judge has been invited to attend an out-of-state conference that focuses on women, justice, and the judiciary. The conference includes presentations and deliberations open to all attendees, as well as “an opportunity for in-depth, closed-session discussion among participating judges.” The conference is jointly organized by a law school, a limited liability company, and a large law firm; and will be held at one of the law firm’s offices. The school has offered to fund the judge’s hotel stay to help defray the cost of attending the conference. The Committee understands the hosting law firm’s attorneys are not currently appearing before the judge.

         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]). A judge must conduct all of the judge’s extra-judicial activities so that they do 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 judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Although a judge may not accept all gifts (see generally 22 NYCRR 100.4[D][5]), a judge may accept an invitation to attend an activity devoted to the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[D][5][a]). A full-time judge also may receive reimbursement of expenses for permissible extra-judicial activities “if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety” (22 NYCRR 100.4[H][1]).¹

         The Committee has advised that “[j]udges who attend an educational program sponsored by the Office of Court Administration and hosted by a law school may accept reimbursement from the law school host, if offered, for the actual and reasonable costs of travel, food and lodging associated with attending the program” (Opinion 13-136). This is true, even if the program “is financed by donations the law school host solicits from law school alumni, law firms, and businesses or business groups” (id.). The Committee has similarly advised that a judge may participate in a legal seminar in a foreign country and “accept travel and accommodation expenses for the judge and the judge’s spouse from the sponsoring institute” (Opinion 00-100).

         Nor is a judge necessarily prohibited from attending an otherwise permissible program merely because it is held at a law firm’s offices. The Committee has advised that a judge may attend and be honored at a reception organized by a bar association and underwritten by one or more commercial sponsors, “including a law firm that will host the reception at its offices and provide all refreshments, where the event is publicized and open generally to members of the bench and bar, unless the host law firm is actively engaged in litigation in the judge’s court” (Opinion 13-45). The Committee has also advised that a judge may speak without compensation at a free continuing legal education program, co-sponsored by a local hospital and a corporate sponsor, to be held at that sponsor’s office, provided the judge does not “endorse or otherwise advance the private interests of the corporate sponsor” and further provided the corporate sponsor is not currently “a party in a contested, adversarial proceeding that is presently being litigated before the judge” (Opinion 12-167).

         Applying these principles to the present inquiry, the Committee concludes that the inquiring judge may accept an invitation to attend and participate in an out-of-state conference on women and justice which is co-sponsored by a law school, a limited liability company, and a law firm, where the event will take place at the premises of a law firm that is not currently litigating before the judge (see Opinions 13-45; 12-167). Also, the judge may accept the law school’s offer to fund the judge’s hotel stay, as the payment source is unlikely to create any appearance of impropriety (see Opinions 13-136; 00-100; 22 NYCRR 100.4[H][1]).

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         ¹ Expense reimbursement of a full-time judge is “limited to the actual cost of travel, food and lodging expenses reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s spouse or guest” (22 NYCRR 100.4[H][1][b]). Any payment in excess of this amount is deemed compensation, subject to additional limitations (see 22 NYCRR 100.4[H][1][a]-[c]; 100.4[H][2]).