Opinion 21-11

January 28, 2021

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

Digest:         A judge may volunteer as a participant in a COVID-19 study conducted by a hospital and may accept the same modest per-visit compensation as other participants.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(2); Opinions 17-182; 91-102.

Opinion:

          A full-time judge asks if it is ethically permissible to volunteer as a participant in a COVID-19 study conducted by a major hospital. All participants receive a monetary stipend of $75 at the initial screening and $50 every six months for the follow-up visits.

         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 may participate in extra-judicial activities not incompatible with judicial office which do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge’s judicial duties take precedence over all other activities (see 22 NYCRR 100.3[A]), and a full-time judge must not serve as an “active participant” of any business entity (22 NYCRR 100.4[D][3]). A full-time judge may receive compensation for permitted extra-judicial activities if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety (see 22 NYCRR 100.4[H][1]), except that the compensation may not exceed a reasonable amount or exceed what a person who is not a judge would receive for the same activity (see 22 NYCRR 100.4[H][1][a]).

         We have previously advised that a full-time judge may volunteer as a hospital pharmacist in conjunction with a non-commercial cancer research project (see Opinion 17-182). Moreover, a full-time judge may serve as a member of a review board for a research and treatment project planned by a department of the medical school where the judge is on the faculty, and may receive reasonable compensation similar to that received by other board members (see Opinion 91-102).

         Here, we see no impropriety in the judge’s proposal to participate in a COVID-19 research study conducted by a hospital. As the anticipated compensation of approximately $125 over the course of a year is reasonable and does not exceed what a person who is not a judge would receive for the same activity, the judge may accept it (see 22 NYCRR 100.4[H][1][a]).

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¹ Depending on the exact scheduling of the payments and follow-up visits, we note the compensation might potentially exceed $150 in the first calendar year. If that proves to be the case, the judge should review and comply with the Section 100.H(2) reporting requirement (see 22 NYCRR 100.H[2] [“A full-time judge shall 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 so received. ... The judge’s report shall be made at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves or other office designated by law.”).