Opinion 89-67

May 25, 1989

Citation Note: The rules were significantly revised and renumbered in 1996. For example, former Section 100.5(c)(5) was replaced by Section 100.4(I), and former Section 100.6 was replaced by Section 100.4(H).

Please Note: See AO-347 concerning the status of Section 100.4(H)(2), which superseded former Section 100.6(c). The Unified Court System's Ethics Commission (Tel. 212-428-2899) is the agency authorized to interpret Part 40 and advise on reporting requirements thereunder.

Topic:          Report of extra-judicial income.

Digest:         As of the date of this Opinion, a judge need not file a report under the Chief Administrator’s Rules of Judicial Conduct with respect to income received for legal services completed prior to the judge’s assuming judicial office, or with respect to income from investments.

Rules:          100.3; Rule 100.5(c)(5); 100.6; (22 NYCRR 100.3, 100.5, 100.6); Part 40 of the Rules of the Chief Judge (22 NYCRR Part 40).

Opinion:

         A judge inquires whether compensation received from the judge’s former law firm for work performed prior to assuming judicial office and income from investments should be reported to the clerk of the court on which the judge serves or other office designated by rule of court.

         Compensation for extra-judicial activities is governed by section 100.6 of the Judicial Conduct Rules, which provides in part as follows:

100.6. Compensation received for extra-judicial activities. A judge may receive compensation and reimbursement of expenses for the quasi-judicial and extra-judicial activities permitted by this Part, if the source of such payments does not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety subject to the following restriction...

(c) A judge must report the date, place and nature of any activity for which he or she received compensation, and the name of the payer and the amount of compensation so received. Compensation or income of a spouse attributed to the judge by operation of a community property law is not extra-judicial compensation to the judge. Such report must be made annually and must be filed as a public document in the office of the clerk of the court on which he or she serves or other office designated by rule of court. This subdivision shall not apply to any judge who is permitted to practice law....

         It is clear that the provision speaks only to compensation for permissible extra-judicial activities performed by the judge while serving on the bench and that subdivision (c), which requires that a report of such income be filed “as a public document in the office of the clerk of the court on which he or she serves or other office designated by rule of court...” is directly referable only to the compensation received for such extra-judicial activity performed while a judge.

         The kind of extra-judicial activities for which compensation is permissible are set forth in sections 100.5 subd.(a) and (c) and 100.6(d) .

         It is clear, therefore, that compensation received for activities completed prior to assuming judicial office need not be reported under section 100.6(c).

         The question of investment income is covered by section 100.5(c)(5) which states that:

(5) A judge is not required to disclose his or her income, debts or investments, except as may be required by Part 40 of the Rules of the Chief Judge or by statute and as provided in this section and sections 100.3 and 100.6 of this Part.

         Thus the judge need not report under section 100.6(c) any investment income from ownership of securities of publicly owned corporations or government issued securities.

         Part 40 of the Rules of the Chief Judge (22 NYCRR Part 40) , which implements section 211(4) of the Judiciary Law, and which will require an extensive annual financial disclosure by all state-paid judges, does not take effect until January 1, 1991 and we express no opinion as to the requirement of that provision.