Opinion 18-106

September 6, 2018

Digest:         A full time court attorney-referee (1) may not teach yoga or meditation classes for a for-profit yoga studio, even if neither the studio nor the referee will benefit financially, but (2) may teach such classes for a not-for-profit organization and may use social media to publicize them.

Rules:          22 NYCRR 100.3(B)(6); 100.4(C)(3)(b)(i)-(ii), (iv); 100.4(D)(3); 100.6(A); Opinions 16-134; 16-117; 08-176; 94-57; 94-19.

Opinion:

         This quasi-judicial, full-time court attorney-referee asks if he/she may teach yoga or meditation for a for-profit yoga studio in two types of classes: (a) standard paid classes, and receive the studio's standard per-session compensation, and (b) community classes, where students pay no money to the studio, but may have to make a donation to charity.¹ If allowed, the studio would not publicize his/her teaching role or his/her quasi-judicial court duties. The referee also asks if he/she may use social media, such as Facebook or Instagram, to promote his/her classes.

         A court attorney-referee must comply with the Rules Governing Judicial Conduct in performing his/her quasi-judicial functions, and must “so far as practical and appropriate” use the rules as guides to his/her conduct (22 NYCRR 100.6[A]).

         Like a full-time judge, a full-time court attorney-referee must not actively participate “in any business entity” (22 NYCRR 100.4[D][3]; Opinion 16-134). Applying this principle, we advised a full-time judge may not teach dancing at a private, for-profit performing arts studio (see Opinion 94-19). Here, too, we conclude a full-time quasi-judicial official must not teach yoga and meditation classes at a for-profit yoga studio, even if uncompensated and with no financial benefit to the studio. As the referee may not teach at a for-profit organization, he/she also may not use social media to publicize such classes.

         However, the referee may teach yoga or mediation classes for a not-for-profit entity (see e.g. Opinions 16-117; 94-57) and may use social media to publicize them.² He/she must be mindful of the connections on social media and abide by all limitations on judicial speech and conduct, such as avoiding impermissible ex parte communications (see Opinion 08-176; 22 NYCRR 100.3[B][6]).

         As in Opinion 16-117, as the referee does “not control or direct who will sign up” for the class, “it is possible that a litigant or attorney who has appeared before [him/her] in a pending matter may participate in the class.” Again, this “does not, in and of itself, create an appearance of impropriety,” provided the referee concludes he/she can be fair and impartial (Opinion 16-117). During the classes, however, the referee “‘must make every reasonable effort to minimize’ contacts with any participants [he/she] recognize[s] as attorneys or litigants in a case currently before [him/her] and specifically discourage any conversation about pending cases” (id. [citations omitted]).

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         ¹ Thus, although the yoga studio is a for-profit entity, the community classes do not financially benefit the yoga studio.

         ² As in prior opinions, we assume that the classes are not primarily intended as fund-raisers (see e.g. 22 NYCRR 100.4[C][3][b][i]-[ii], [iv]).