Opinion 10-187

December 9, 2010

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge may serve as consultant to a non-profit organization, specializing in educating people with addiction issues, for the sole purpose of reviewing and making recommendations about the organization’s programs and policies, as long as no defendants before the judge are enrolled in the program, none of the work would be done on court time or in the courthouse, and the judge does not give legal advice to the organization. The judge may accept a reasonable stipend for this work.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(G); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(2); Opinions 09-207; 03-96.

Opinion: 

         A full-time judge who presides in a drug treatment court asks whether he/she may serve as paid consultant to a non-profit educational program specializing in educating people with addiction issues. The judge states he/she would review the organization’s programs and policies and make suggestions on ways to improve them based on his/her training, education and experience. The program is physically located in an adjacent county where the judge does not regularly sit, and none of the consulting work would be done on court time or in the courthouse. The inquiring judge states that none of the defendants appearing in the judge’s court has ever been enrolled in this program and further notes that the judge cannot send drug court participants to the program because it is not approved by the Office of Alcohol and Substance Abuse Services as a provider.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote the public’s confidence in judicial integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that are not incompatible with judicial office and that do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Although a full-time judge may not practice law (see 22 NYCRR 100.4[G]), he/she may serve as a non-legal advisor to an educational organization not conducted for profit (see 22 NYCRR 100.4[C][3]), subject to certain limitations and requirements not applicable here. Moreover, a judge may receive compensation and reimbursement of expenses for permissible extra-judicial activities, subject to certain limitations (see 22 NYCRR 100.4[H][1]).

         Since the judge states that none of the defendants appearing in the judge’s court has ever been or could ever be enrolled in this program and that none of the review work would be done either on court time or in the courthouse, the Committee sees no ethical reason why the judge could not serve as a non-legal consultant to this non-profit educational program (see e.g. Opinions 09-207; 03-96). Of course, the judge may not give legal advice to the organization (see 22 NYCRR 100.4[G]).

         As to the stipend, Section 100.4(H)(1) provides in pertinent part that:

A full-time judge may receive compensation . . . for the extra-judicial activities permitted by this Part, if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions:

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

         Thus, as long as the judge adheres to the compensation and reporting obligations of Rule 100.4(H)(1)-(2), there is no bar to accepting a reasonable stipend.