Opinion 19-143

December 12, 2019

Digest:         A full-time judge may teach law-related classes for compensation at a for-profit college or university, provided such teaching does not conflict with the proper performance of judicial duties.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.4(H)(1)(c)(2); Opinions 18-168; 18-106; 16-117; 15-149; 14-196; 13-187; 12-167; 09-92; 09-73; 09-09; 05-12; 04-15; 01-58; 00-01; 96-143; 94-57; 94-19.

Opinion:

         A full-time judge asks if he/she may teach a law-related class at a private, for-profit college and receive the “usual and reasonable compensation.”

         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 judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). Although a full-time judge may not be an “active participant of any business entity” (see 22 NYCRR 100.4[D][3]), he/she may speak, lecture, and teach as extra-judicial activities (see 22 NYCRR 100.4[B]), provided such activities are not incompatible with judicial office and 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 (see 22 NYCRR 100.4[A][1]-[3]).

         A full-time judge may receive compensation for teaching in a program sponsored by a not-for-profit educational, charitable or civic organization (see Opinion 16-117 [fitness class at not-for-profit organization]; 94-57 [dance classes at not-for-profit corporation]). However, a full-time judge ordinarily may not teach for for-profit organizations, even if uncompensated (see Opinions 18-106 [meditation class at a yoga studio]; 13-187 [law firm mock settlement conference]; 09-92; 01-58 [law firm CLE programs]; 00-01 [lecture on a cruise for a discounted fare]; 96-143 [law school admission prep provider]; 94-19 [dance classes at a performing arts studio]).

         We have, however, recognized an exception for certain law-related programs. Where the teaching is uncompensated, we have said a full-time judge may teach continuing legal education (CLE) courses even when sponsored by for-profit organizations (see Opinions 12-167 [free CLE program sponsored by a local hospital and corporate sponsor]; 05-12 [CLE program sponsored by a for-profit, large investment management firm]; 04-15 [CLE programs co-sponsored by bar associations, for-profit and not-for-profit corporations, and law firms]), absent other circumstances creating an appearance of impropriety, such as a CLE program for a private law firm (see e.g. Opinion 09-92) or other private entities that regularly appear before the judge (see Opinion 14-196).

         With respect to compensation for teaching at institutions of higher learning, we look to Section 100.4(H)(1)(c)(2) (emphasis added), which provides:

No full-time judge shall solicit or receive compensation for extra-judicial activities performed for or on behalf of ... (2) a school, college or university that is financially supported primarily by New York State or any of its political subdivisions, or any officially recognized body of students thereof, 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 if the teaching does not conflict with the proper performance of judicial duties.

In applying this rule, we have advised that a full-time judge may receive compensation for teaching at not-for-profit law schools, universities, and colleges, including private not-for-profit colleges (see Opinions 09-73 [ethics courses at private not-for-profit law school; 09-09 [law course at a private not-for-profit educational institution]).

         However, the question of whether a full-time judge may lecture for compensation at a for-profit college or university appears to be a matter of first impression.¹ In at least two opinions (not involving a college or university), we suggested that a full-time judge may never lecture for compensation at any for-profit educational institution (Opinions 09-09; 00-01). Our rationale was that a for-profit school is a “business entity” and therefore a full-time judge may not lecture for pay (see id.). That view was founded on the general prohibition on active participation in a business entity in Section 100.4(D)(3), rather than considering the specific authorization of Section 100.4(H)(1)(c)(2).

         In our view, a literal reading of the rule makes clear that a full-time judge may receive the ordinary compensation for a lecture or for teaching a regular course of study at “any college or university.” This unambiguous language does not refer to the commercial or non-commercial status of a “college or university” in determining whether a full-time judge may receive compensation for teaching. Neither do we.

         Thus, we conclude this judge may teach a law-related class at a private, for-profit college or university and receive the “usual and reasonable compensation,” provided the teaching does not conflict with the proper performance of judicial duties (22 NYCRR 100.4[H][1][c][2]).

          Opinions 09-09 and 00-01 are hereby modified to the extent they suggest that a full-time judge may not lecture for compensation at a private “college or university” merely because it is a for-profit educational institution.

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¹ As many (perhaps most) private educational institutions are organized as not-for-profit entities, our silence in prior opinions about the commercial or non-commercial nature of a particular private university or college does not clearly answer the present question (see e.g. Opinions 18-168; 15-149; 09-09).