Opinion 09-09

January 29, 2009

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 may receive appropriate compensation for teaching a law course at a not-for-profit private educational institution. The judge may also volunteer his/her services both as an alumni advisor in assisting in the publication of a law journal for a law school and serve as an editor of a periodical published by a local bar association listing membership activities, achievements, honors and awards.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a)-(c); Opinions 09-73; 05-12; 05-06; 00-01 (Vol. XVIII); 98-121 (Vol. XVII); 96-141(Vol. XV); 92-05 (Vol. IX); 90-204; Joint Opinion 96-143/97-43/97-58/97-66/97-96 (Vol. XV). 

Opinion: 

         A full-time judge asks whether he/she may engage in the following activities:

1) serve as an adjunct law professor for a private university;

2) serve as a volunteer alumni advisor for a law school law journal; and

3) serve as a volunteer editor of a section of a monthly local bar association periodical that lists membership activities, achievements, awards and honors.

         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, including teaching (see 22 NYCRR 100.4[B]), but must ensure that they (1) do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) do not detract from the dignity of judicial office; or (3) do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Moreover, subject to certain limitations that do not appear relevant to the present inquiry (see 22 NYCRR 100.4[H][1][a] - [c]), a full-time judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[H][1]). Nevertheless, a judge may not serve as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity (see 22 NYCRR 100.4[D][3]).

         The Committee previously has advised that a full-time judge may serve as an adjunct law professor for a private university (see Opinion 92-05 [Vol. IX]); may teach a course at a law school (see Opinion 05-06); may teach a course in real property law at a non-profit educational institution (see Opinion 98-121 [Vol. XVI]); and may teach an ethics course at a private, not-for-profit university’s school of law (see Opinion 09-73). However, a full-time judge may not simultaneously maintain a full-time teaching position at a local university (see 96-141[Vol. XV]).

         The Committee has reached a different conclusion with respect to a judge teaching at a for-profit entity. A full-time judge may not lecture for compensation at a private school that is a for-profit educational institution (see Opinion 00-01 [Vol. XVIII]); may not act as an instructor for a profit-making company that provides pre-law preparatory instructions for applicants for admission to law schools (see Joint Opinion 96-143/97-43/97-58/ 97-66/97-96 [Vol. XV]); and may not teach a course in civil litigation at a commercial, for-profit proprietary educational institution (see Opinion 98-121 [Vol. XVII]; but see Opinion 05-12 [we do not believe that the non-compensated participation in a single event sponsored by a for-profit entity necessarily makes the judge an active participant in the business of that entity]; Opinion 90-204 [judge may serve as a paid lecturer with the Court Clerk Development Program, a private profit-making enterprise which conducts programs to prepare court personnel for promotional examinations, which programs improve the legal system and the administration of justice]).

         While in the present inquiry the judge does not specify the corporate or other status of the private university, it appears that it operates as a not-for-profit organization. Assuming that is so, the judge may continue to teach the course at the university so long as it does not interfere with the proper performance of his/her judicial duties (see 22 NYCRR 100.4[A] [3]; 100.4[B]), and the judge may be compensated for doing so, subject to the limitations set forth in 22 NYCRR 100.4(H)(1) (a) - (c).

         The inquiring judge also may continue to volunteer his/her services as an editor of a section of a monthly local bar association periodical that lists membership activities, achievements, awards and honors, and as a volunteer alumni advisor for a law school’s law journal. In the Committee’s view, as these activities are performed for entities “ . . . devoted to the improvement of the law, the legal system or the administration of justice. . .” (22 NYCRR 100.4[C][3]), they are not only permissible, but are expressly encouraged by the Rules Governing Judicial Conduct.