Opinion 24-171

October 30, 2024

Digest: A full-time judge may accept an invitation from a foreign government to speak at an international symposium about racial equity, and may accept the proffered reimbursement of travel expenses for the judge and their spouse.

Rules:   22 NYCRR 100.0(V); 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)(a)–(b); Opinions 22–180; 15-179; 10-24; 06–49; 00–100.

Opinion:     

          The inquiring full-time judge has been invited to speak at an international symposium on racial equity in a distant location.   The host country’s judiciary has offered to pay for the necessary air travel and lodging for the judge and their spouse to attend the multi-day program.  The judge asks if it is ethically permissible to accept the offer and if there are reporting requirements.

          A judge must avoid even the appearance of impropriety and act to promote public confidence in judicial integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  “A judge may speak, write, lecture, teach and participate in extra-judicial activities” (22 NYCRR 100.4[B]), as long as the activities are compatible with judicial office and do not cast doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]–[3]).  A full-time judge may receive compensation and reimbursement of expenses for permissible 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” (22 NYCRR 100.4[H][1]).  Under the Rules, expense reimbursement is “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” (22 NYCRR 100.4[H][1][b]).  For completeness, we note that compensation must not “exceed a reasonable amount” nor “exceed what a person who is not a judge would receive for the same activity” (22 NYCRR 100.4[H][1][a]).

          It is well-established that judges may participate in permissible extra-judicial activities overseas (see e.g. Opinions 22–180 [permitting judge to accept invitation to conference concerning legal system with expenses paid by not-for-profit foundation]; 10–24 [advising judge may speak at forum about administration of justice, financed by foreign government agency]; 06–49 [permitting judge to participate in mission to Israel with travel expenses reimbursed by non-profit organization]; 00–100 [allowing judge to participate in legal seminar in another country financed by non-profit group]).  Here, we conclude the judge may accept a speaking engagement at an international symposium on the topic of racial equity, subject to generally applicable limitations on judicial speech and conduct (see e.g. Opinion 15-179 [advising judge may give presentation on recognizing and reducing racial prejudice]).  For example, the judge must not comment on pending or “reasonably foreseeable” matters “in any court within the United States or its territories” (22 NYCRR 100.3[B][8]; 100.0[V]).  The judge also must “offer the presentation in such a manner as to promote public confidence in the judiciary’s impartiality and integrity and not suggest a predisposition on any particular matter” (Opinion 15-179).

          We also see no impropriety in permitting another nation’s judiciary to cover the reasonably incurred actual expenses for travel, food and lodging for the judge and their spouse to attend the multi-day symposium.  As we have observed, the question of what expenses are “reasonably incurred” (22 NYCRR 100.4[H][1][b]) must be considered in the context of the extensive travel required (see Opinion 22-180 [concluding time and distance of overseas flights required for travel rendered business class airfare reasonable and appropriate]).  Accordingly, we conclude the judge may accept the proffered coverage of travel and lodging associated with this extra-judicial activity for the judge and their spouse.

          Finally, we note that the Unified Court System’s Ethics Commission (tel. 212-428-2899) is the agency authorized to interpret Part 40 and advise on any potential reporting requirements thereunder.