Opinion 22-158

October 27, 2022

Digest:     A full-time judge may be the uncompensated guest speaker discussing aspects of the judge’s life and career path related to diversity and inclusion at a for-profit company’s employee-only event, where the company’s interests are unlikely to come before the judge and the judge’s name and image would not be used for commercial purposes.

Rules:       22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); Opinions 21-67; 21-65; 20-155; 17-163/18-03/18-21; 16-34; 15-179; 14-196; 13-187.

Opinion:

The inquiring full-time judge asks if it is ethically permissible to accept an invitation from a for-profit company to be the guest speaker at a virtual, employee-only event in recognition of Black History Month and International Women’s Day. At this pro-diversity event, the judge would share their life story “as an example of breaking down barriers,” offer “thoughts on leadership and mentoring,” and invite non-minorities “to serve as allies.”¹ The judge would not receive an honorarium. The company is incorporated outside New York, with offices overseas and in the Midwest. The judge states that the company “is not frequently involved in litigation in our court system and is unlikely to appear before” the judge’s court. The company also has provided written assurances that the judge’s name and image would be used only in communications to employees about this free event and would not be shared with customers, clients or other stakeholders to market the company’s services or products.

 A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may speak, lecture, and teach (see 22 NYCRR 100.4[B]), subject to generally applicable limitations (see 22 NYCRR 100.4[A][1]-[3]). For example, a judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Moreover, a full-time judge must not be an “active participant” of any business entity, unless an exception applies (22 NYCRR 100.4[D][3]).

While the proposed topic is clearly permissible (see e.g. Opinion 15-179 [judge may give a presentation on recognizing and reducing racial prejudice]), the involvement of a for-profit company requires some analysis (see e.g. Opinion 20-155 [full-time judge may not form a for-profit company to provide ongoing instruction and education on topics involving diversity, equity and inclusion]).

Preliminarily, we note that the company is not a private law firm or other for-profit entity whose interests are likely to come before the judge (see e.g. Opinions 21-65 [social media company whose records may be subject of search warrants]; 14-196 [medical facility that regularly appears before the judge]; 13-187 [private law firm]). Where such issues are not a factor, we have said a full-time judge may participate as one of several panelists and mentors at a free luncheon for young people of a particular minority group, “where the event’s philanthropic purposes are clear, the judge’s participation will not be used for promotional purposes, and the commercial sponsor has assured the judge in writing that no commercial activity whatsoever will take place at the event” (Opinion 16-34).

We have also said a full-time judge may participate, without compensation, in a commercially produced documentary film comparing various judicial systems around the world (see Opinion 21-67); or in a commercially produced news segment honoring the achievements of individuals who share a particular racial, ethnic or cultural background or heritage (see Opinion 17-163/18-03/18-21).

Here, the judge would appear as an uncompensated guest speaker for a for-profit company, whose interests are unlikely to come before the judge, at a single, strictly internal pro-diversity event that will not itself involve any commercial activity. The judge has received express assurances that the judge’s name and likeness will not be used for any commercial purposes. On these facts, we conclude the judge’s participation will not create an appearance that the judge is an “active participant” in the company or otherwise impermissibly lend judicial prestige to advance private interests. Therefore, it is ethically permissible for the judge to accept the invitation to be the company’s guest speaker.

As always, the judge must be mindful of all applicable limitations on judicial speech and conduct, including the public comment rule (see 22 NYCRR 100.3[B][8]).

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¹ The term “allyship” appears to describe a constellation of behaviors or attitudes which individuals outside a minority group can take to consciously advance diversity and inclusion of that group’s members.