Opinion 22-180

December 15, 2022

Digest:         A full-time judge may accept an invitation from an overseas not-for-profit charitable foundation to speak at an annual conference on a matter concerning the legal system and, under the circumstances, may accept the organization’s offer of business class airline travel.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(H)(1); 100.4(H)(1)(b); Opinions 08-20; 06-103; 06-49; 00-100; 98-56; 91-07.

Opinion:

         A full-time judge has been invited to speak at the annual conference of a not-for-profit charitable foundation overseas. According to its website, the foundation “is a grantmaking organization only and does not solicit or accept donations” from anyone. The foundation expends its resources to benefit the public in “four core program areas: Arts and Culture, Education, Health and Sports, and Social Welfare.” The judge has been asked to “speak about how mental health issues have impacted our courts, and how we have responded to these issues.” The foundation is inviting the judge’s spouse to attend as well. Pursuant to its standard policy, the foundation will cover round-trip airfare (up to a set amount for business class travel given the distance) as well as food and lodging during the conference for both the judge and the judge’s spouse. The judge asks if it is ethically permissible to accept the invitation.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote the public’s confidence in judicial integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may speak, write, lecture, teach and participate in extra-judicial activities (see 22 NYCRR 100.4[B]), provided such activities are not incompatible with judicial office and that 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 judge may not comment on any proceeding pending or impending in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]). Subject to certain limitations, a full-time judge may receive compensation and reimbursement of expenses for permissible extra-judicial activities (see 22 NYCRR 100.4[H][1]). Of particular relevance here, Section 100.4(H)(1)(b) provides:

Expense reimbursement shall be limited to the actual cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s spouse or guest. Any payment in excess of such an amount is compensation.

Lecturing at an International Conference

         It is well-established that full-time judges may participate in permissible extra-judicial activities overseas (see e.g. Opinions 06-49 [a mission to Israel with judge’s expenses reimbursed by a non-profit organization; 00-100 [a legal seminar in another country financed by a non-profit group]; 98-56 [a trip to Africa, financed by a third party sponsor, to observe elections]; see also e.g. Opinion 08-20 [part-time judge may participate in a church-sponsored mission to Africa, where the sponsoring church will pay the expenses, so long as the judge does not participate in fund-raising events or lend the prestige of judicial office to any such efforts.]).

         As this not-for-profit grantmaking foundation does not solicit or accept donations, its annual conference is clearly not a fund-raiser. In furtherance of the foundation’s charitable activities relating to health and social welfare, the judge has been asked to address a particular topic involving mental health and the legal system (i.e. “how mental health issues have impacted our courts, and how we have responded to these issues”). Nothing in the inquiry suggests that this overseas foundation has, or is likely to have, any business before the Unified Court System. As described, we can see no impropriety in the judge’s proposed participation in this conference, subject to generally applicable limitations on judicial speech and conduct.

Travel Reimbursement

         When a full-time judge is participating in permissible extra-judicial activities, the rules expressly authorize the judge to accept reimbursement of the “actual cost” of expenses for travel, food and lodging for the judge and the judge’s spouse which are reasonable and appropriate for the occasion (see 22 NYCRR 100.4[H][1][b]; Opinions 06-103; 00-100; 91-07).

         The only novel question here is whether a full-time judge may accept reimbursement for “business class” airfare. In our view, what level of airfare is “reasonably incurred” by the judge (22 NYCRR 100.4[H][1][b]) must be considered in the full context of the travel. Here, the time and distance of the overseas flights required for travel to and from the conference are long enough that the foundation’s official policy is to cover business class airfare. We note that the foundation’s policy is based on the distance a speaker must travel, and is capped at a particular amount for the speaker and their guest, without regard to the speaker’s background or profession. Under the circumstances, we conclude that business class airfare is reasonable and appropriate, and the judge may therefore accept reimbursement of such travel expenses actually incurred on behalf of the judge and their spouse.