Opinion 21-123

September 9, 2021

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

Digest:         A full-time court attorney-referee who receives a commission of over $150 for serving as executor of a family member’s estate must report it to the clerk of the court as required by Section 100.4(H)(2).

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(D)(5)(e); 100.4(H)(1); 100.4(H)(2); 100.4(I); 100.6(A); 101.3(b); Opinion 11-50.

Opinion:

 A full-time court attorney-referee asks if it is necessary to report receipt of a partial statutory commission for serving as executor of a first-degree relative’s estate to the clerk of the court under Section 100.4(H)(2). Although the referee waived a portion of the commission authorized by statute, the referee still received more than $150. The referee believes that public disclosure of such “personal family information” would serve no public interest.

         As a threshold matter, we “may respond to questions concerning judicial ethics posed by persons who exercise quasi-judicial duties in the Unified Court System but who are not judges or justices of the Unified Court System” (22 NYCRR 101.3[b]). The Rules Governing Judicial Conduct state that persons “who perform judicial functions within the judicial system” must “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” (22 NYCRR 100.6[A]). Where the Rules distinguish between full-time and part-time judges, a full-time quasi-judicial official is generally subject to the same rules as a full-time judge so far as practical and appropriate (see e.g. Opinion 11-50).

         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 full-time judge may receive compensation for permissible extra-judicial activities if its source does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety, subject to certain limitations (see 22 NYCRR 100.4[H][1]). Section 100.4(H)(2) states, in relevant part, the following:

Public Reports. 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.

         Matters which might be deemed “personal family information” are not exempt from reporting by Section 100.4(H)(2). To the contrary, the public reporting requirements apply to compensation received by a full-time judge for permissible extra-judicial activities, including fiduciary activities. Permitted fiduciary activities for a full-time judge include serving as executor of the estate of a member of the judge’s family (see 22 NYCRR 100.4[E][1]).

         The inquiring referee analogizes this statutory commission to a “gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification” under the Rules (22 NYCRR 100.4[D][5][e]). In our view, the statutory commission (partial or full) is compensation for the referee’s services as executor, and cannot be classified as a gift, bequest, favor or loan.

         Accordingly, the court attorney-referee must report the receipt of the commission to “the office of the clerk of the court ... or other office designated by law,” as the amount exceeds $150 (22 NYCRR 100.4[H][2]).

         If the referee has questions about possible reporting obligations under Part 40 (see 22 NYCRR 100.4[I]), they may contact the Unified Court System’s Ethics Commission (tel. 1-212-428-2899) for guidance.