Opinion 08-72

June 5, 2008

Dear Judge:

         This responds to your inquiry (08-72) in which you ask whether you may engage in outside employment relative to your status as a licensed [boat pilot]. While the Committee sympathizes with the present financial situation of all New York State Judges, the Rules governing Judicial Conduct nonetheless prohibit a full-time judge from, inter alia, being an “active participant of any business entity” subject to certain exceptions not applicable here (22 NYCRR 100.4[D][3]).

         In your inquiry, you ask that we review 22 NYCRR100.5(a) in considering your question. However, the rules were amended in 1996 and that section no longer exists in the form you cite. The rule as currently written no longer permits engagement in “arts, sports and other social and recreational activities.” Rather, the successor rule states that “[a] judge may speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of this Part” (22 NYCRR 100.4[B]).

         In the many opinions written on this particular subject, the Committee has found that a judge may not participate as an advisor to a for-profit television production group (see Opinion 94-116 [Vol. XIII]) or participate in a for-profit production of an educational and legal video (see Opinion 01-86); may not act in a brief role in a commercial motion picture (see Opinion 96-134 [Vol. XV]) or in a television commercial even if the fee is waived or donated to charity (see Opinion 99-86 [Vol. XVIII]); may not speak for compensation on a cruise ship even if the compensation is in the form of a discount (see Opinion 00-01); speak as part of a hotel’s promotional weekend, regardless of the speech content (see Opinion 98-75 [Vol. XVII]); or accept private employment at a for-profit entity, including a gas station or carpentry shop or work for a landscaper, security company, beach club or taxi company (see Opinion 95-55 [Vol. XIII]).

         Some examples of permissible business enterprises are ownership and rental of real property as long as the tenants do not appear before the judge in court (see Opinion 93-91 [Vol. XI]; 22 NYCRR 100.4[D][2]); participation in a business entity engaged solely in the investment of financial resources of the judge or members of the judge’s family (see 22 NYCRR 100.4[D][3][b]); passive participation in a business entity (see 22 NYCRR 100.4[D][3]); lecturing for reasonable compensation and expense reimbursement at a not-for-profit business training workshop (see Opinion 02-20), at a Veterans Administrative hospital not funded by the state (see Opinion 91-112 [Vol. VIII) or on trial techniques for the bar and other civic associations (see Opinion 92-83 [Vol. IX]); writing a book subject to limits on promotional activity (see Opinion 06-105); and teaching as an adjunct professor for standard compensation at a not-for-profit entity such as a private university (see Opinion 92-05 [Vol. IX]) or part-time at a CUNY college (see Opinion 98-121), but note that full-time teaching is prohibited (see Opinion 96-141 [Vol. XV]).

Very truly yours,

George D. Marlow

Justice of the Supreme Court

                                                 Committee Chair