Opinion 95-55

June 8, 1995

Digest:         A full-time judge may not accept private employment at a gas station, or work for a landscaper, security company, beach club, carpentry shop or taxi company organized for profit; nor may a full-time judge conduct a business for profit as an independent contractor, individually, or for a corporation.

Rule:            New York State Constitution Art. 6 Sec. 20(4); 22 NYCRR 100.4; 100.5(a), (c); Canon 5C Code of Judicial Conduct; Matter of Intemann, 73 NY2d 580.

Opinion:

         A full-time judge with a large family and associated expenses asks if alternative employment with a profit-making entity is ethically permissible. We conclude that, with the exception of the limited employment opportunities allowed by the Rules of the Chief Administrator of the Courts, such activities are disallowed.

         Specifically, the judge asks if it is allowable to work in a gas station, or for a landscaper, security company, beach club, carpentry shop or taxi company organized for profit. The judge also inquires if employment as an independent contractor individually or for a corporation is permissible. We answer both questions in the negative.

         Most full-time judges are bound by the broad language of the New York State Constitution which, in Article 6 Section 20 (4), states that the designated judges may not engage in the practice of law, act as arbitrators, referees or compensated mediators or engage in the conduct of any other profession or business which interferes with the performance of judicial duties.

         The Rules of the Chief Administrator of the Courts do allow a full-time judge to engage in activities to improve the law, the legal system and the administration of justice. 22 NYCRR 100.4 provides:

A judge, subject to the proper performance of his or her judicial duties, may engage in the following quasi-judicial activities, if in doing so the judge does not cast doubt on the capacity to decide impartially any issue that may come before him or her.

(a) a judge may speak, write, lecture, teach and participate in other activities concerning the law, the legal system, and the administration of justice:

         In addition, 22 NYCRR 100.5 (a), relating to permissible extra-judicial activities for judges, states:

A judge may write, lecture, teach and speak on nonlegal subjects, and engage in the arts, sports and other social and recreational activities, if such avocation activities do not detract from the dignity of the office or interfere with the performance or judicial duties.

         However, the allowable financial activities for full-time judges are severely limited by Rule 100.5 (c) of the Rules of the Chief Administrator of the Courts, which states:

(1) A judge shall refrain from financial and business dealings that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he or she serves.

(2) No full-time judge shall be a managing or active participant in any form of business enterprise organized for profit, nor shall he or she serve as an officer, director, trustee, partner, advisory board member or employee of any corporation, company, partnership or other association for profit or engaged in any form of banking or insurance.”

         See also, Canon 5C, Code of Judicial Conduct.

         The operative words which are controlling in relation to business and employment opportunities not permitted for full-time judges, as stated in the above Rule are “organized for profit”. (See, Matter of Intemann, 73 NY2d 580, 581).

         Applying that litmus test to the employment and business activities suggested by the inquiring judge, we find all to be proscribed by the Rules Governing Judicial Conduct.