Opinion 00-01
January 27, 2000
Please Note: Opinion 19-143 states “Opinions 09-09 and 00-01 are hereby modified to the extent they suggest that a full-time judge may not lecture for compensation at a private “college or university” merely because it is a for-profit educational institution.” See Opinion 19-143 for further details.
Digest: A full-time judge (1) may sell a patent for an invention owned by the judge; (2) may not lecture for compensation (a) at a public high school; (b) at a private school that is a for-profit educational institution; (c) on a cruise ship, including where the compensation is in the form a discount.
Rule: 22 NYCRR 100.2(C); 100.3(B)(8); 100.4(D)(3); 100.4(H)(1)(c); 100.5(A); Opinions 99-86; 98-121; 96-134 (Vol. XV); 95-110 (Vol. XIII); 90-135 (Vol. VI); 99-86; 98-121; 96-134 (Vol. XV); 95-110 (Vol. XIII); 90-135 (Vol. VI).
Opinion:
A newly-elected full-time judge asks a series of questions dealing with extra-judicial activities.
First, the judge asks whether a patent which had been granted to the judge for an invention, may be sold. The Committee knows of no barrier preventing the sale of a patent. Presumably, the patent is an asset owned by the judge which was granted prior to the inquirer becoming a judge. Its sale would not appear to run afoul of the limitations on financial activities on full-time judges set forth in section 100.4(D) of the Rules Governing Judicial Conduct. 22 NYCRR 100.4(D).
The judge next asks whether the judge may lecture "for hire" (1) at a public high school; (2) at a private school; (3) on a cruise ship; (4) on a cruise ship if the compensation is in the form of a discount for the cruise.
As to receiving compensation for lecturing at a public high school, we direct the judge's attention to section 100.4(H)(1)(c) of the Rules Governing Judicial Conduct, which provides in part that:
(c) No full-time judge shall solicit or receive compensation for extra-judicial activities performed for or on behalf of ... (2) a school, college or university that is financially supported primarily by New York State or any of its political subdivisions, or any officially recognized body of students thereof, except that a judge may receive the ordinary compensation for a lecture or for teaching a regular course of study at any college or university if the teaching does not conflict with the proper performance of judicial duties.
Thus, it appears that the exception to the prohibition against receiving compensation from a public New York educational institution pertains only to public colleges and universities and not to public schools. Accordingly, the judge may not lecture "for hire" at a New York State public high school, i.e. a high school "financially supported primarily by New York State or any of its political subdivisions." 22 NYCRR 100.4(H)(1)(c).
As to lecturing "for hire" at a "private school," it is not clear from the inquirer what the nature of the school is, or on what the judge will be lecturing. For example, if the private school is a for-profit educational institution, the judge may not be retained as a lecturer for compensation. On the other hand, if it is a non-profit educational institution, it may be possible for the judge to receive compensation. The distinction was made clear by the Committee in Opinion 98-121, in which it was concluded that a full-time judge could teach a course in real property law for paralegal students at a non-profit educational institution (e.g. a college that is part of the City University of New York), but should not teach a course in civil litigation for paralegal students at a commercial, for-profit proprietary educational institution. It is the latter situation that calls into play section 100.4(D)(3) of the Rules Governing Judicial Conduct which forbids a full-time judge from serving as an "active participant of any business entity ..." A private school that is for-profit is a "business entity" and therefore, just as the judge could not act for pay in a commercial television production or movie, the judge could not lecture for pay at a proprietary school. See Opinions 99-86; 96-134 (Vol. XV).
Also, as noted, the judge has not provided any particulars as to the nature of the intended lectures. Thus, even if the private school is non-profit, there may be restrictions on the judge's involvement that extend beyond the prohibition on commenting on pending or impending cases. 22 NYCRR 100.3(B)(8). The judge could not, for example, lecture on the virtue of one local political party over another or one candidate for political office over another. 22 NYCRR 100.5(A). We cite this merely as one limiting instance and recommend that the judge examine the entire Rules Governing Judicial Conduct for others.
Finally, we note that the judge may not lecture for pay on a cruise ship regardless of whether the judge (or, for that matter, his or her spouse) is compensated by a discount from the cost of the trip or by direct monetary payment. The Committee has previously stated, in answering virtually identical inquiries, that such a course of action would violate the rules against being an active participant in a business enterprise and could be perceived as lending the prestige of judicial office to advance the private interests of others. 22 NYCRR 100.2(C); 100.4(D)(3); Opinions 98-75; 95-110 (Vol. XIII); 90-135 (Vol. VI).