Opinion 16-117

October 28, 2016

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

Dear :

         This responds to your inquiry (16-117) asking whether, as a full-time judge, you may teach a fitness class for a not-for-profit educational, charitable or civic organization. If so, you ask whether you may accept the organization’s standard per-session compensation for instructors.¹ In addition, you indicate that although your name and photograph would be listed as an instructor, there would be no mention of or reference to your judicial position.

         Although a full-time judge may not be an “employee or other active participant of any business entity” (22 NYCRR 100.4[D][3]), the Rules Governing Judicial Conduct do not prohibit a judge from receiving compensation from a not-for-profit entity for extra-judicial activities (see 22 NYCRR 100.4), subject to generally applicable Rules and opinions (see e.g. 22 NYCRR 100.2; 100.2[A]; 100.2[C]; 100.3[A]). Thus, the Committee has advised that a full-time judge may continue to teach dancing classes at a private not-for-profit performing arts studio (see Opinions 09-192/09-231; 94-57). However, the compensation must be “reasonable” (22 NYCRR 100.4[H][1][a]); “shall not exceed what a person who is not a judge would receive for the same activity” (id.); and is subject to reporting requirements (see 22 NYCRR 100.4[H][2]).

          Because you do not control or direct who will sign up for the fitness class, it is possible that a litigant or an attorney who has appeared before you in a pending matter may participate in the class. This does not, in and of itself, create any appearance of impropriety (cf. Opinion 16-91). Indeed, if you can be fair and impartial, you retain full discretion to continue to preside in the matter as your impartiality cannot reasonably be questioned solely on this basis. Whether or not to disclose that you saw a litigant or attorney in your fitness class at the next court appearance is entirely in your discretion. Thus you may, “in [your] sole discretion, disclose such connections as a purely prophylactic measure without incurring any further obligation” (Opinion 16-138, relying on Opinion 16-54).

         However, during the fitness class, you “must make every reasonable effort to minimize” contacts with any participants you recognize as attorneys or litigants in a case currently before you (id.) and specifically discourage any conversation about pending cases (see 22 NYCRR 100.3[B][6]).

         Enclosed, for your convenience, are Opinions 16-138; 16-91; Opinions 09-192/09-231 and 94-57 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.

___________________________

         ¹ That is, the entity pays its instructors a set fee for each class they teach, regardless of how many students enroll. Because compensation does not vary with the number of attendees, the compensation structure does not “provide instructors with a financial incentive to maximize the number of paying attendees” (Opinions 15-202; 11-128).