Opinion 22-89

June 30, 2022

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

Digest:    A full-time judge (1) may participate in a group, organized by the Governor’s office and the Department of Motor Vehicles, that will propose simpler verbiage and more logical organization for the Vehicle and Traffic Law, where the membership is balanced with subject matter experts from relevant state agencies, non-profits, prosecutors, and defense counsel; (2) may be reimbursed for travel and lodging expenses reasonably incurred; but (3) may not be compensated for work performed on behalf of the group.

Rules:     22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(H)(1); 100.4(H)(1)(a)-(b); 100.4(H)(c)(1); 100.4(H)(2); Opinions 22-14; 20-198; 19-127; 18-183; 18-127; 17-88; 15-26/15-44; 14-177; 06-73; 03-130.

Opinion:

         A full-time judge has been invited to participate in a group, organized by the Governor’s office and the Department of Motor Vehicles, that will “rewrite significant sections of the New York State Vehicle and Traffic Law” in an attempt to “simplify verbiage and organize [it] logically.” The focus of the group’s work is to restructure the statutes in an orderly manner, resulting in “a report on current law.” The group’s members will be “subject matter experts” from “all state agencies with VTL related practice, non-profits, Interlock Providers, STOP-DWI, Bar Associations, Prosecutor Associations and prominent practicing defense attorneys.” On these facts, the judge asks if it is ethically permissible to become a member and participate in the group’s work. If so, the judge further asks if they may accept reimbursement for travel and lodging when in-person meetings are required, given that the expected source of reimbursement will be “a Grant ... from the Governor’s Traffic Safety Committee.” The judge states there will be “no use of STOP DWI proceeds in this project.” Finally, the judge asks if they may accept compensation “at a nominal state- based rate per hour expended” for this work.

         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]). Judges generally may serve on entities “devoted to the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3]), subject to generally applicable limitations on judicial speech and conduct (see e.g. 22 NYCRR 100.3[B][8] [public comment rule]).¹ Full-time judges “may receive compensation and reimbursement of expenses” for permissible extra-judicial activities, subject to limitations (22 NYCRR 100.4[H][1]). For example, the source of payments must not “give the appearance of influencing” performance of judicial duties or “otherwise give the appearance of impropriety” (id.) and compensation for a full-time judge’s extra-judicial activities must “not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity” (22 NYCRR 100.4[H][1][a]). Moreover, “[n]o full-time judge shall solicit or receive compensation for extra-judicial activities performed for or on behalf of ... New York State, its political subdivisions or any office or agency thereof” (22 NYCRR 100.4[H][1][c][1]).

1. Participation in the Group

         In general, a judge may be a member of an organization “devoted to the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3]). The present group, organized by the executive branch, clearly seeks to improve the law by proposing changes to the Vehicle and Traffic Law that would “simplify verbiage and organize [it] logically” and render it “more clear, simple and useful.” We note this activity is likely to draw on the judge’s judicial experience applying the statute in cases before the judge.

         It is also significant that the group appears to be balanced with subject matter experts from relevant state agencies, non-profits, prosecutors, and defense counsel. We have recognized that where a group “is balanced among lawyers representing all interests before the court it is appropriate - indeed necessary - for judges to participate in discussions between lawyers aimed at the functioning and improvement of the court system” (Opinion 17-88 [internal citation omitted]). For example, in the domestic violence context we noted that including “representatives from all components of the community” or “a wide variety of persons and organizations, including law enforcement and the defense bar,” helps “ensure that the judge’s participation will not cast reasonable doubt on the judge’s impartiality” (Opinion 15-26/15-44 [internal citation omitted]).

         Accordingly, we conclude the judge may serve as a member of the group. The judge’s participation is, of course, subject to generally applicable limitations on judicial speech and conduct. For example, the judge should avoid discussing pending or impending cases, avoid demonstrating any predisposition to deciding a specific case in a certain way, and avoid any ex parte communications concerning a pending matter (see e.g. Opinions 18-183; 20-198; 22 NYCRR 100.3[B][6] [ex parte rule]; 100.3[B][8] [public comment rule]).

2. Travel Reimbursement

         In general, a full-time judge may receive reimbursement for “the actual cost of travel, food or lodging reasonably incurred by the judge” for permissible extra-judicial activities (22 NYCRR 100.4[H][1][b]). Here, it appears that the source of funds is the Governor’s Traffic Safety Committee. As nothing in the inquiry suggests that the Traffic Safety Committee is likely to appear before the judge, and no monies are coming from the STOP DWI fund, we conclude this source of payments is unlikely to create any appearance of “influencing the judge’s performance of judicial duties” or other appearance of impropriety (22 NYCRR 100.4[H][1]; see generally Opinions 19-127; 06-73).

         We thus conclude the judge may accept reimbursement of actual travel and lodging expenses reasonably incurred when in-person meetings are required.

         These amounts need not be reported to the clerk of the court under Section 100.4(H)(2) (see Opinion 18-127; 22 NYCRR 100.4[H][1][b] [noting that “payment in excess of such an amount is compensation”]).

3. Compensation

         As pertinent here, “[n]o full-time judge shall solicit or receive compensation for extra-judicial activities performed for or on behalf of: (1) New York State, its political subdivisions or any office or agency thereof” (22 NYCRR 100.4[H][1][c]).

         Accordingly, this judge may not receive compensation for serving on the group, whether at an hourly rate or otherwise (see Opinions 22-14; 14-177; 03-130). 

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¹ A judge’s extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on their capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).