Opinion 17-11
January 26, 2017
Please Note:
See AO-347 concerning the status of Section 100.4(H)(2).
Digest: (1) It is a judge’s obligation to determine whether a lay organization for
men of a particular ethnicity and religion engages in invidious
discrimination. (2) A full-time judge may perform with a non-profit
orchestra and other musical groups that are not business entities and
accept reasonable compensation for his/her performances, subject to
certain limitations. (3) A full-time judge may publish his/her own
musical compositions and receive royalties and performance rights fees
for them. Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.2(D); 100.4(A)(1)-(3);
100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(2); 100.4(H)(1)(c)(1)-(2); Opinions 16-179; 16-37; 16-06; 15-171; 15-162; 15-17; 10-95; 10-84;
09-192/09-231; 06-141; 06-105; 05-149; 99-145; 97-19; 96-82; 94-57; 97-19; 94-19. Opinion: A full-time judge who is also a musician and an adjunct professor asks several
questions about the propriety of certain extra-judicial activities and income. First,
the judge asks whether he/she may be a member of a lay organization for men of a
particular ethnicity and religion. Second, the judge asks whether, as a part-time
member of several music groups and a non-profit orchestra, he/she may perform at
recitals and music festivals. Many of the participants are current or retired music
teachers. Compensation typically ranges from $75 to $200 per performance, and the
judge’s total income from these activities in a recent year before he/she became a
full-time judge was less than $3,000. Third, the judge asks if he/she may publish
his/her musical compositions and receive royalties from music publishers and
performance rights fees from the American Society of Composers, Authors and
Publishers (ASCAP), of which he/she is a member. The judge notes that music
publishers would include “music biographical information in their websites to
promote sale of the music,” but would not mention his/her judicial status. A judge must always avoid even the appearance of impropriety (see 22 NYCRR
100.2) and must always act in a manner that promotes public confidence in the
judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not lend
the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).
Generally, a judge may engage in extra-judicial activities 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 and are not incompatible with judicial office (see 22 NYCRR
100.4[A][1]-[3]). 1. Membership in Lay Organization for Men of a Particular Ethnicity and Religion With respect to the first inquiry, the Rules Governing Judicial Conduct prohibit
a judge from holding “membership in any organization that practices invidious
discrimination on the basis of age, race, creed, color, sex, sexual orientation,
religion, national origin, disability or marital status” (22 NYCRR 100.2[D]). However,
a judge may hold “membership in an organization that is dedicated to the
preservation of religious, ethnic, cultural or other values of legitimate common
interest to its members” (id.). The Committee, “as a general rule, will decline to provide a definitive answer
as to whether a particular organization practices invidious discrimination” (Opinion
96-82).1 This is particularly true where, as here, the inquiry provides few details and
the answer is likely to require a “[far] ranging investigation into the history,
background, policies and internal membership of the organization” (id.). Ultimately
it is the judge’s duty to determine whether the organization practices invidious
discrimination (id.). As stated in Opinion 96-82, in exercising this duty: a judge should begin by ascertaining, first, whether the organization
excludes persons from membership on the basis of age, race, creed,
color, sex, sexual orientation, religion, national origin, disability or
marital status. If the organization does discriminate on such a basis,
then a determination must be made by the judge as to whether the
exclusion is invidious. If the exclusionary practice is reasonably related
to a legitimate purpose (i.e., the “preservation of religious, ethnic,
cultural or other values of legitimate common interest to its
members”), membership is not prohibited. If, on the other hand, the
discriminatory practice is one in which the policy of exclusion is
arbitrary, and excludes persons or categories of persons solely on the
basis of the characteristic in question, and by reason of such exclusion
stigmatizes such persons or categories of persons as inferior, then the
judge must conclude that the discrimination is invidious. Membership
in such an organization is prohibited. 2. Accepting Compensation for Musical Performances Although a full-time judge may not be an “active participant of any business
entity” (22 NYCRR 100.4[D][3]), he/she “may receive compensation and
reimbursement of expenses” for permissible extra-judicial activities, subject to
certain limitations (22 NYCRR 100.4[H][1]; Opinion 09-192/09-231). For example, the
source of payments must not “give the appearance of influencing the judge’s
performance of judicial duties or otherwise give the appearance of impropriety” (22
NYCRR 100.4[H][1]), and 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”
(22 NYCRR 100.4[H][1][a]). A full-time judge also must not “solicit or receive
compensation for extra-judicial activities performed for or on behalf of: (1) New York
State, its political subdivisions or any office or agency thereof; (2) a school, college
or university that is financially supported primarily by New York State or any of its
political subdivisions, … except that a judge may receive the ordinary compensation
for a lecture or for teaching a regular course of study at any college or university” (22
NYCRR 100.4[H][1][c][1]-[2]). Accordingly, the Committee has advised that a full-time judge could be a
member of a musicians’ union and could accept compensation as a union member for
musical performances, as long as the band itself is not a business enterprise and the
judge’s involvement is not publicized (see Opinion 06-141). As the Committee
explained (id. [citations omitted]): the musical groups in which the inquirer plays are not business entities
because they are primarily rehearsal groups that play for their own
personal enjoyment and seldom perform for a fee. Compensation as a
member of the musicians’ union is thus ethically permissible for
occasional performances of the type described in the inquiry. The judge
may accept a “reasonable” pay scale set by the union on the same terms
as other union members, subject to a reporting requirement if the
compensation exceeds $150. Likewise, in Opinion 15-17, the Committee advised that a full-time judge may
play in a band that performs “eight to ten [times] yearly,” and be paid occasionally,
“if the band is not a business and your role is unadvertised.” Here, as described by the inquiring judge, and in view of the relatively modest
compensation received by him/her, the musical groups in which he/she plays do not
appear to be business entities. Therefore, he/she may accept compensation for
performing with the groups (see generally Opinion 09-192/09-231; compare Opinion
94-57 [full-time judge may teach dance at a non-profit studio] with Opinion 94-19
[full-time judge may not teach dancing classes at private, for-profit performing arts
studio]). Paid participation in a not-for-profit orchestra is also permissible (see
generally Opinion 09-192/09-231). Finally, the 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 … at least annually” as required by the Rules (22
NYCRR 100.4[H][2]). 3. Publication of Musical Compositions The Committee has likewise advised that a full-time judge “may engage in
extra-judicial activities … involving the expression of creative talents” and accept
reasonable compensation for them, subject to certain limitations (see Opinion 09-192/09-231; 22 NYCRR 100.2[C]; 100.4[D][3]; 100.4[H][1]-[2]). For example, a full-time judge may develop and produce a musical album of original copyrighted songs
written and performed by the judge (see Opinion 05-149); write and publish a work of
fiction, permit the use of his/her judicial title and photograph on the book’s back
cover, and personally participate in book-signing events (see Opinions 16-06; 06-105;
99-145); accept revenues and royalties from his/her published work (see Opinions 15-162; 10-84); enter an option/purchase agreement for his/her screenplay (see Opinion
16-37); and receive income from an online software tool and online commentaries
created by the judge (see Opinion 10-95). The judge need not conceal his/her
biographical information, including his/her identity as a judge, but promotion of such
works must not exploit the judge’s judicial position (see e.g. Opinions 16-37; 06-105;
99-145). Likewise, this judge may publish his/her own musical compositions and receive
royalties and performance rights fees for them (see e.g. Opinions 15-162; 05-149; cf.
10-84), subject to any applicable reporting requirements (see 22 NYCRR 100.4[H][2]). _________________________________ 1 Of course, “[t]his does not mean that the Committee will refuse to render an
opinion where it is clear and incontrovertible that the organization in question is
intended to promote ‘religious, ethnic, cultural or other values of legitimate common
interest to its members’” (Opinion 96-82 fn 2; see also e.g. Opinions 16-179 [“In light
of these facts, the Committee concludes the entity does not invidiously discriminate,
as it in fact expands volunteer opportunities for women to reach parity with men, and
it is primarily ‘dedicated to the preservation of religious, ethnic, cultural or other
values of legitimate common interest to its members’”]; 15-171 [“As described, the
organization, though associated with one racial, ethnic, or cultural group, does not
invidiously discriminate. Rather, it is devoted to public service and improvement of
its members, with no suggestion of exclusionary practices”] [citations omitted]; 97-19
[“it appears that the organization is dedicated to preserving the cultural viewpoints
and concerns of particular interest to Irish-Americans. There is no indication that the
organization … arbitrarily exclude[es] from membership, on the basis of race,
religion, sex, or national origin those individuals who would otherwise be admitted to
membership”]).