Opinion 14-67

April 24, 2014

Please Note: While it does not affect the outcome here, see AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge is not required to file a report under Section 100.4(H) with respect to interest income, investment income, or compensation for legal work performed before he/she became a full-time judge.

Rules:          22 NYCRR 40.1; 40.2; 100.2; 100.2(A); 100.4(D)(5)(h); 100.4(H)(1); 100.4(H)(2); 100.4(I); Opinions 09-186; 97-148 (Vol. XVI); 89-67 (Vol. III).

Opinion:

         The inquiring full-time judge asks whether Section 100.4(H)(2) applies to extra-judicial income such as “account receivable payments that were collected from my prior law firm” or the judge’s “interest [or] investment income.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A full-time judge may receive compensation for permissible extra-judicial activities if its source does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety, subject to certain limitations (see 22 NYCRR 100.4[H][1]). A full-time judge must report the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation so received (see 22 NYCRR 100.4[H][2]).

         The language of Section 100.4(H)(2), by its terms, applies only when a full-time judge receives over $150 in compensation for a permissible extra-judicial “activity” (see 22 NYCRR 100.4[H][2]).¹

         Applying this principle, the Committee has advised that Section 100.4(H)(2) “is intended to require a report only of compensation received for extra-judicial activities engaged in by a judge while serving on the bench, not for [legal] services rendered prior to becoming a judge” (Opinion 97-148 [Vol. XVI]; see also Opinion 89-67 [Vol. III]). For similar reasons, the Committee has also advised that a judge need not file a report with the clerk of the court “with respect to income from investments” (Opinion 89-67 [Vol. III]). Although the Committee has not previously addressed the issue, it is clear that interest income likewise does not constitute compensation for extra-judicial activities undertaken by the judge.

         Accordingly, the Committee concludes that a full-time judge is not required to file a report under Section 100.4(H)(2) with respect to interest income, investment income, or compensation for legal work performed before he/she became a full-time judge (see Opinions 97-148 [Vol. XVI]; 89-67 [Vol. III]; 22 NYCRR 100.4[H][2]).

         However, the judge should contact the Unified Court System’s Ethics Commission, the agency with the ultimate authority to interpret Part 40, for guidance on whether and how to report the value of such income on the judge’s Annual Statement of Disclosure (see generally Opinions 09-186; 97-148 [Vol. XVI]; 22 NYCRR 40.1; 40.2; 100.4[I]; contact: Ethics Commission: 1-212-428-2899).

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     ¹ For completeness, the Committee notes that reporting also is required “in the same manner” as Section 100.4(H)(2) when a judge accepts a “gift, bequest, favor or loan” valued over $150 under the catch-all provision of Section 100.4(D)(5)(h). However, the sources of income the inquiring judge has described do not involve a “gift, bequest, favor or loan” (22 NYCRR 100.4[D][5][h]).