Opinion 22-74(B)

May 5, 2022

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

Digest:         Where a full-time judge earned fiduciary commissions as co-executor of an estate before assuming the bench, the judge need not report those commissions to the clerk of the court under Section 100.4(H)(2), even if they are paid after the judge assumes full-time judicial office.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(E)(1)-(2); 100.4(H)(2); Opinions 22-07; 21-123; 14-67; 11-21; 97-148.

Opinion:

         A full-time judge expects to receive fiduciary commissions for the judge’s prior service as co-executor of an estate. Those services were performed entirely before the judge assumed the bench, but the commissions will be payable during the judge’s tenure as a full-time judge. The judge asks if these commissions must be reported to the clerk of the court under Section 100.4(H)(2).

         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]). Section 100.4(H)(2) states:

A full-time judge shall report the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation so received. ... The judge’s report shall be made at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves or other office designated by law.

         Where a full-time judge or quasi-judicial official serves as the executor of a family member’s estate during their tenure as a judge or quasi-judicial official, any commission they may receive for this service is “compensation” for a permissible extra-judicial activity within the meaning of Section 100.4(H)(2) (see Opinion 21-123). If the commission exceeds $150, it must be reported to the clerk of the court or other office designated by law (see Opinion 21-123).

         But we have also recognized that Section 100.4(H)(2) applies only when a full-time judge receives over $150 in compensation for “a permissible extra-judicial ‘activity’” (Opinion 14-67). That is, it “require[s] a report only of compensation received for extra-judicial activities engaged in by a judge while serving on the bench,” (Opinion 97-148 [emphasis added]).

         Applying this principle, we have said that compensation earned by a full-time judge prior to assuming the bench, but paid after, need not be reported under Section 100.4(H)(2). This is true whether the compensation is for real property conveyed before the judge assumed judicial office (see Opinion 97-148) or for legal services previously rendered (see Opinions 22-07; 14-67; 11-21; 97-148).

         Here, too, the compensation is not for permissible extra-judicial activities, but for activities this full-time judge performed before assuming the bench.¹ Accordingly, we conclude the judge need not report receipt of fiduciary commissions resulting from the judge’s prior service as co-executor under Section 100.4(H)(2), even though the commissions are actually received by the judge after assuming the bench.

We address only the judge’s obligations under Part 100. Questions about a judge’s financial disclosure obligations under Part 40 should be addressed to the UCS Ethics Commission (tel. 212-428-2899).

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¹ Indeed, a full-time judge’s fiduciary activities are strictly limited (see 22 NYCRR 100.4[E][1]-[2]).