Opinion 13-165

December 12, 2013

Digest:         A part-time judge, who is a member of a bank’s advisory board, may publicize the bank’s current promotion, in which customers who are referred by a member of the advisory board will receive $100, provided he/she does not identify him/herself as a judge or otherwise use his/her judicial title in connection with this commercial activity.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(I), (iv); 100.4(D)(1)(a); 100.4(D)(3); 100.6(B)(4); Opinions 12-107; 12-91.

Opinion:

         The inquiring part-time judge serves on the advisory board of a local banking institution, which is offering a promotion for certain new customers. Specifically, if “any advisory board member refer[s] a customer to the bank, the customer receives $100.00 from the bank.” The judge asks whether he/she may inform potential customers of this promotion, either in person or by placing advertisements in local newsletters or bulletins.

         A judge must avoid impropriety and the appearance of impropriety (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]). Unlike full-time judges, a part-time judge may serve as an officer, director, or other active participant in a business entity (see 22 NYCRR 100.4[D][3]). Indeed, a part-time judge may accept private employment that is not incompatible with judicial office and that does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]) but must not engage in business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][1][a]; cf. 22 NYCRR 100.2[C] [a judge must not lend the prestige of judicial office to advance the private interests of the judge or others]).

         The Committee previously has advised that a part-time judge may, to the extent legally permitted, authorize his/her restaurant to promote sales by advertising that the restaurant will contribute part of its sales to a not-for-profit entity, provided the judge’s name and judicial office are not associated with the promotion (see Opinion 12-91).¹ The Committee expressly noted the “commercial ... component” of the promotion “does not render it in violation of judicial ethics, as the prohibition on being ‘an active participant of [a] business entity’ applies only to full-time judges” (id., citing 22 NYCRR 100.4[D][3]; see also 100.6[B][4]).

         Here, the Committee likewise concludes the inquiring part-time judge may actively participate in commercial activity as a member of the bank’s advisory board, by informing the public about the bank’s current promotion, either in person or through advertisements. The Committee assumes the judge will mention his/her name in such advertisements/personal solicitations, as the promotion’s terms require customers to tell the bank they were referred by a member of the bank’s advisory board. This is permissible if the judge omits his/her title in the advertisements/ personal solicitations (see generally Opinion 12-107 [the Committee expects judges will omit their judicial status in business transactions]; see also 22 NYCRR 100.2[C]; 100.4[D][1][a]).²

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         ¹ The Committee notes that an additional factor present in Opinion 12-91, but not present here, was the prohibition on personal participation in the solicitation of funds for a not-for-profit organization (see 22 NYCRR 100.4[C][3][b][I], [iv]).

           ² The Committee notes that although the inquiring judge must not allude to his/her judicial status in informing potential customers about the promotion, “others in the community may nonetheless be aware of such status” (Opinion 12-107). The conduct permitted by this opinion is not rendered suspect merely because a potential customer manifests an awareness that the inquirer is a judge (see id.).