Opinion 24-70

May 9, 2024

Digest:  A full-time judge may not accept an invitation from the judge’s spouse to discuss legal issues arising in the judge’s court at a “lunch and learn” meeting sponsored by the spouse’s for-profit employer.

Rules:   22 NYCRR 100.2; 100.2(A)-(C); 100.4; 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); Opinions 22-158; 21-65; 18-126; 16-34; 14-196; 13-187; 12-167.

Opinion:

          The inquiring full-time judge asks if it is ethically permissible to accept an invitation from the judge’s spouse to address a “lunch and learn” meeting regarding certain real estate issues that arise in a specialized part of the judge’s court.  The judge’s spouse conducts such meetings, sponsored by the spouse’s for-profit mortgage brokerage employer, on a monthly basis for real estate agents who may provide referrals to the judge’s spouse.

          A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).  A judge must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).  Nor may a judge lend judicial prestige to advance private interests or allow the impression that others are in a special position to influence the judge (see 22 NYCRR 100.2[C]).  Full-time judges also may not serve as an “advisor, employee or other active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D][3]).  Judges may ordinarily lecture and teach (see 22 NYCRR 100.4[B]), but such extra-judicial activities must be conducted so as to minimize the risk of conflict with judicial obligations (see 22 NYCRR 100.4).  To that end, extra-judicial activities must be compatible with judicial office and must not cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). 

When evaluating a full-time judge’s proposed speaking engagement, we consider the sponsor and overall context of the event as well as the proposed topic.  Particular caution is needed where the sponsor is a commercial entity, as the permissibility of participation is highly fact-specific (see e.g. Opinions 22-158 [judge may be uncompensated guest speaker discussing his/her experiences related to diversity and inclusion at an employees-only presentation for a company whose interests are unlikely to come before judge]; 12-167 [judge may speak without compensation at CLE program co-sponsored by a hospital and a for-profit corporation]; 16-34 [judge may serve as panelist and mentor at a philanthropic event for minority youth, where the commercial sponsor assured the judge in writing that “no commercial activity whatsoever” will take place at the event]). 

On the other hand, we have said a judge may not accept a social media company’s invitation to address its employees in-house about how legal process is authorized, the use and purpose of the company’s records in legal proceedings, and the importance of accuracy and vigilance in response to legal process (see Opinion 21-65).  Full-time judges, in particular, may not “provid[e] a private educational session ‘in house’ at a for-profit entity because they are prohibited from serving as an advisor or other active participant in any business entity” (id.).  We have advised that to avoid lending the prestige of judicial office to private interests, a judge should not permit a private law firm to post a transcript of an interview with the judge on its website (see Opinion 18-126), nor should a judge participate in and critique a mock settlement conference as part of a private law firm’s associate training program (see Opinion 13-187).  We have also cautioned against a judge showing favoritism by affording a private company the benefit of his/her judicial knowledge, expertise, and experience (see Opinion 14-196).

Here, the proposed speaking engagement would involve providing legal information to real estate agents who may provide business referrals to the judge’s spouse, at a “lunch and learn” session sponsored by the spouse’s for-profit employer and hosted by the judge’s spouse.  In our view, this would impermissibly lend the prestige of judicial office to the judge’s spouse and to the spouse’s employer.  It could also create an appearance that this full-time judge is an advisor or active participant in the employer’s business.  Accordingly, we conclude the judge may not accept the invitation to speak at this program.