Opinion 04-15

March 11, 2004

Please Note: To determine when an entity is actively engaged in litigation before a judge, please see Opinion 13-45.  As noted in the final paragraph of that opinion: “The Committee’s conclusion in Opinion 04-15 prohibiting a judge and a judge’s staff from participating in legal education programs co-sponsored by one or more bar associations and one or more not-for-profit corporations, law firms, or for-profit corporations when a co-sponsor is ‘a party in a contested, adversarial proceeding that is presently being litigated before the judge’ is modified to include the analysis set forth above for determining when an entity is actively engaged in litigation before a judge.”

Digest:         A full-time judge may participate as a speaker or panelist in legal education programs co-sponsored by bar associations, not-for-profit corporations, law firms, or for-profit corporations, where the judge is not being compensated, subject to certain limitations.

Rule:            22 NYCRR 100.2(C);100.3(B)(8); 100.4(B); 100.4(D); 100.4(H)(1)(b); Opinions 91-07 (Vol. VII); 00-100 (Vol. XIX); 00-120 (Vol. XIX); 01-58.

Opinion:

         A Surrogate and his/her law department staff have been invited as speakers, participants and panel members in Continuing Legal Education (“CLE”) programs co-sponsored by a bar association and charitable religious not-for-profit corporations, as well as law firms, title companies, investment companies and other for-profit corporations.

         The programs charge a fee and CLE credit is awarded. The topic is related to the Surrogate Court practice. Light refreshments, breakfast or lunch are sometimes provided. At some point during the seminar, an announcement is made informing the audience of the services provided by a co-sponsor. It is understood that the judge and his or her staff would not receive compensation for their contribution to the program.

         Based on the facts presented, the Committee does not perceive an ethical barrier to the judge’s or staff’s participation. See, Opinion 00-120 (Vol. XIX). The activity contemplated is not prohibited business or financial activity under 22 NYCRR 100.4(D), nor is the judge lending the prestige of judicial office to advance the private interests of others. 22 NYCRR 100.2(C). The judge and the judge’s staff may also accept refreshments and meals as is appropriate to the occasion. 22 NYCRR 100.4(H)(1)(b); Opinions 91-07 (Vol. VII), 00-100 (Vol. XIX ). We also note that the situation before the Committee in this inquiry differs from 01-58. In that inquiry the CLE program was exclusively for the associates of the law firm that was sponsoring it. Presumably, the program in this inquiry is open to all members of the bar.

         Further, the judge’s and the staff’s participation are subject to certain limitations. Under 22 NYCRR 100.3(B)(8), public comment may not be made about any pending or impending proceeding. Moreover, should a co-sponsor be a party in a contested, adversarial proceeding that is presently being litigated before the judge, the judge and members of the judge’s staff should decline to participate.