Opinion 21-95

June 23, 2021

Dear :

   This responds to your inquiry (21-95) asking whether you may attend, as a guest of your spouse, a multi-day annual conference, located in a different part of the state from where you preside, attended solely by prosecutors. In addition, you ask whether you may attend the association’s annual dinner, a social event at which the only business conducted is the installation of new officers. You indicate that you will not attend any of the substantive programs given at the conference but, instead, will simply be staying at the hotel hosting the conference. In addition, your spouse is entitled to bring a guest to the annual dinner. To the extent any additional costs are incurred, you have indicated that you would pay for them out of pocket.

   The Rules Governing Judicial Conduct prohibit a judge from accepting a gift from anyone except in certain, specific circumstances (see 22 NYCRR 100.4[D][5]). One such exception to the general rule is when a gift, award or benefit is incidental to the business, profession or other separate activity of a judge’s spouse, provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties (see 22 NYCRR 100.4[D][5][b]). Thus, a judge may accompany their spouse to a conference where the judge’s attendance, due only to the spousal relationship, is “sufficiently limited so as to avoid even an appearance of impropriety” (Opinion 09-74).

   Here, the Committee concludes that there can be no reasonable inference that the invitation was intended to influence the judge as the judge is not the invited party but simply the guest of one. Moreover, there appears to be no additional cost incurred by the judge’s staying at the conference or attending the annual dinner.¹

   Enclosed, for your convenience, are Opinions 21-35; 19-74; and 09-74 which address this issue.

                                               Very truly yours,

                                               Margaret Walsh

                                               Supreme Court Justice

                                               Committee Co-Chair

                                               Lillian Wan

                                               Acting Supreme Court Justice

                                               Committee Co-Chair

Encls.

_______________________

¹ We note that Section 22 NYCRR 100.4(D)(5)(b) contains no reporting requirement. For guidance on whether any report must be made under 22 NYCRR Part 40, the judge may consult the UCS Ethics Commission (telephone: 212-428-2899; website: http://ww2.nycourts.gov/IP/ethics).