January 24, 2018
Digest: A full-time judge (1) may retain a pharmacy license and (2) may volunteer as a hospital pharmacist in a cancer research project, subject to the usual limitations on judicial speech and conduct.
Rules: NY Const art VI, § 20(b); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(D)(3); 100.4(G); Opinions 16-134; 13-111; 11-31; 05-130(A); 03-129; 01-78; 95-100.
A new full-time judge, who was previously a hospital pharmacist, asks if he/she may retain his/her state pharmacy license and volunteer as a hospital pharmacist in a cancer research project.
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 impartiality and integrity (see 22 NYCRR 100.2[A]). A judge must “respect and comply with the law” (id.) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge’s judicial duties take precedence over all his/her other activities (see 22 NYCRR 100.3[A]), and a full-time judge must not serve as an “active participant” of any business entity (22 NYCRR 100.4[D]).
We have not previously considered whether a full-time judge may retain or renew a pharmacy license, although we have considered certain other licenses. A full-time judge “may not apply for a real estate broker’s or sales license under any circumstance” (Opinion 95-100; see also Opinions 16-134; 05-130[A]; 22 NYCRR 100.4[D]). In essence, we have yet to encounter any permissible non-commercial use for such a license. Conversely, we concluded a full-time judge may retain and renew his/her existing insurance agent and insurance broker licenses, but only “if legally required to permit receipt of renewal commissions for insurance policies a judge sold prior to assuming the bench, and not to sell or service any insurance policies” (Opinion 11-31). We cautioned the judge to ensure that he/she “does not create any impression that [he/she] is engaged in impermissible business activities or otherwise create an appearance of impropriety” (id.).
Somewhat further afield, although a full-time judge must not practice law (see 22 NYCRR 100.4[G]), he/she may apply for admission to practice before the United States Supreme Court (see Opinion 01-78). We reasoned that, although admission to the bar of a particular court is a pre-condition for the practice of law, “it does not follow that admission to the bar in and of itself constitutes the practice of law under this generally understood definition” (id.).
Here the inquiring full-time judge seeks to retain a pharmacy license. We believe such licenses are not inherently commercial in nature. We see no reason why simply maintaining a pharmacy license, without more, would convey an impression that the judge is engaged in impermissible business activities or otherwise create an appearance of impropriety or undermine public confidence in the judiciary (see 22 NYCRR 100.2; 100.4[D]; cf. Opinion 01-78).1 Thus, a full-time judge need not surrender his/her pharmacy license, provided he/she strictly complies with all applicable ethical limitations.
The judge further asks if he/she may volunteer as a hospital pharmacist in conjunction with a cancer research project. We believe a full-time judge may volunteer as a hospital pharmacist in conjunction with a non-commercial cancer research project. However, the judge’s participation remains subject to all applicable limitations on judicial speech and conduct. We particularly caution that a full-time judge may not serve as an “active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D]).
1 We assume, for present purposes, that holding a pharmacy license, unlike serving as a notary public, does not itself constitute a “public office or trust” under NY Const art VI, § 20(b) (see Opinions 13-111; 03-129 [a full-time judge who is subject to the constitutional prohibition on holding “any other public office or trust” may not serve as a notary public]).