Opinion 16-136

September 8, 2016

Digest:         A judge, about to retire fully from the Unified Court System, may agree to be the guest of honor at a not-for-profit entity’s fund-raising dinner that will take place after his/her retirement, provided the judge’s participation is not announced or publicized until after his/her retirement is effective.

Rules:          22 NYCRR 100.6(A); 100.4(C)(3)(b)(ii); Opinions 16-27; 14-45; 12-37; 10-182; 09-165; 07-76; 90-136.

Opinion:

         A sitting judge who will be retiring at the end of the year asks if he/she may agree to be the guest of honor at a not-for-profit educational institution’s fund-raising dinner to be held next year. The entity is not a law school. The judge has already made clear to the organizers that his/her participation (if permitted) must not be announced or publicized before he/she is fully retired.

         Where, as here, an entity other than a “court employee organization, bar association or law school” holds a fund-raising event, the Rules Governing Judicial Conduct provide that a “judge ... may not be a speaker or the guest of honor,” but may accept “an unadvertised award ancillary to such event” (22 NYCRR 100.4[C][3][b][ii]). Section 100.6(A) further provides:

All judges in the unified court system and all other persons to whom by their terms these rules apply, e.g., candidates for elective judicial office, shall comply with these rules of judicial conduct, except as provided below. All other persons, including judicial hearing officers, who perform judicial functions within the judicial system shall comply with such rules in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct.

         Clearly, a former judge who is designated as a JHO remains generally subject to the Rules (see id.; see also Opinions 16-27; 09-165; 07-76). By contrast, a former judge who is fully retired, and has not been designated as a JHO or otherwise re-employed as a quasi-judicial official within the Unified Court System is no longer subject to the Rules (see 22 NYCRR 100.6[A]; see also Opinions 12-37 [whether a former judge may appear in certain cases or on behalf of certain clients presents a question of professional ethics beyond the Committee’s jurisdiction]; 90-136 [whether a former judge may practice in the court where he/she formerly presided is a matter of professional ethics, not judicial ethics]).

         Thus, the answer to this inquiry depends on the judge’s status from the time the invitations or announcements are issued through the event’s date. If he/she will be fully retired and not a JHO, the Rules do not apply to him/her. In that case, the Committee sees no impropriety if the judge agrees to be guest of honor at a not-for-profit organization’s fund-raising dinner occurring only after he/she is fully retired from the bench, provided the judge’s participation is not announced or publicized before his/her retirement begins, when the Rules no longer apply to him/her.

         Of course, if the judge is designated as a JHO during this period, he/she may not be the guest of honor (see Opinion 10-182; 22 NYCRR 100.4[C][3][b][ii]). At most, he/she could only accept an entirely unannounced award ancillary to the event (see id.; see also Opinion 14-45 [a sitting judge’s name must not be listed on invitations to a college’s fund-raising event or other promotional materials and must not otherwise be announced before the event]).