Opinion 08-188

October 23, 2008

NOTE: This Opinion has been modified by Opinion 09-174, particularly with respect to the final paragraph. For ease of reference, the “original” final paragraph is shown below with strike-through text, while the revised final paragraph (as set forth in Opinion 09-174 fn 1) is shown with underline.

Digest:         (1) Judges may attend the annual luncheon of the Judicial Section of a bar association when another section of the bar association subsidizes the cost of the luncheon. (2) The inquiring judge may invite a speaker to address the judges who attend the luncheon about financial planning and retirement, but may not permit the speaker to promote retirement seminars he/she conducts throughout the state and/or refer the judges to vendors of financial products who will be assembled in the corridor outside the luncheon location.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1); 100.4(D)(5); 100.4(D)(5)(a); Opinions 05-80; 03-55; 03-107; 90-40(Vol. V); 87-15(a)(b) (Vol. I).

Opinion:

         A judge who is the Presiding Member of the Judicial Section of a bar association advises that he/she is responsible for organizing the Judicial Section’s annual luncheon to take place during the bar association’s annual meeting. The judge asks whether it is ethically permissible for another section of the bar association to subsidize the cost of the luncheon.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities so long as they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 100.4[A][1]).

         The Rules Governing Judicial Conduct generally prohibit judges from accepting gifts (see 22 NYCRR 100.4[D][5]). A judge may, however, accept an invitation to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[D][5][a]). The Committee, therefore, has previously advised that a judge may attend a bar-sponsored Continuing Legal Education program as a guest of the bar association (see Opinion 05-80); monthly bar association meetings and an annual dinner dance as the bar association’s guest (see Opinion 03-55); and, an outing, dinner or other bar association or similar lawyers’ association function as the association’s guest (see Opinion 87-15[a][b] [Vol. I]).

         As the luncheon in the present inquiry is an annual event offered by the Judicial Section of a bar association during the bar association’s annual meeting, it is also ethically permissible for judges attending the luncheon to receive a gift from the bar association of a portion of the cost to attend the luncheon (see id.).

         The inquiring judge also asks whether it is ethically permissible for a lawyer who is a former chair of the section of the bar association that will subsidize the luncheon to address the judges in attendance on ways for current and retired judges to improve their retirement packages. The speaker would advise the judges that vendors of financial products are assembled in the corridor outside the luncheon location and are available to speak to them. During his/her presentation, the speaker would also advise the judges in attendance that they will be invited to attend a seminar that will be offered at various locations throughout the state so that he/she can provide more information about what financial products are available to them locally. The inquiring judge would announce that no one is obligated to speak to any vendor and that the Judicial Section of the bar association is not endorsing or supporting any financial product.

         [Original final paragraph, deleted by Opinion 09-174] A Judge may not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]). Even with the disclaimers the inquiring judge proposes, any reference by the speaker to the services he/she can provide or to the presence of other vendors and their services would violate this prohibition, and, therefore, is impermissible (see Opinions 03-107; 90-40 [Vol. V]; see also 22 NYCRR 100.2[C]). The speaker may, however, comment generally about financial planning and retirement.

         [Revised final paragraph] A judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). With the disclaimers the inquiring judge proposes, the attorney who has been invited to speak at the luncheon may be permitted to refer briefly to the services he/she can provide and to the presence of other vendors and their services. Permitting the speaker to elaborate further and otherwise promote such services in his/her official remarks to the assembled judges would violate §100.2(C) of the Rules Governing Judicial Conduct, and, therefore, is impermissible (see Opinions 03-107; 90-40 [Vol. V]). The speaker may, however, comment generally about financial planning and retirement.