January 28, 2021
Digest: On these facts, a full-time judge may not participate in a proposed not-for-profit corporation that would be exclusively controlled by the judge’s family and would feature the judge as its sole compensated lecturer with a sliding scale of fees.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); Opinions 18-106; 16-40; 15-179; 14-35; 12-22; 96-98.
A full-time judge asks if they may be one of the initial founders and directors, and also the sole compensated lecturer, for a not-for-profit corporation with the charitable purpose of “provid[ing] educational resources and presentations to various community, business and/or government entities on the topics of implicit bias, race, gender and diversity and inclusion issues.” The judge has extensive experience presenting such programs as an extra-judicial activity, and has previously done so without charging any fee or accepting any honorarium. Over the past year, however, the demand for such programs has increased more than tenfold and tailoring the information to different industries requires much more of the judge’s time. The judge would therefore like to be able to charge a fee, especially for presentations to “corporate entities outside of the public sector.” The judge envisions a sliding fee schedule distinguishing between public sector offices ($0-250), not-for-profit agencies ($0-500), and corporate entities ($250-1,000) to compensate the judge for the time and effort to research, prepare and customize the presentation and materials for specific industries. As the Not-for-Profit Corporation Law requires at least three initial directors, two of the judge’s immediate family members would serve as the other directors.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on his/her capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A]-). Although “[a] full-time judge shall not serve as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity” (22 NYCRR 100.4[D]), a judge may generally serve as an “officer, director, trustee or non-legal advisor” of a “cultural, fraternal or civic organization not conducted for profit” except where prohibited by the Rules (22 NYCRR 100.4[C]). Moreover, full-time judges “may receive compensation and reimbursement of expenses” for permissible extra-judicial activities, subject to limitations (22 NYCRR 100.4[H] [noting the source of payments must not “give the appearance of influencing” performance of judicial duties or “otherwise give the appearance of impropriety”]). For example, compensation for a full-time judge’s extra-judicial activities must “not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity” (22 NYCRR 100.4[H][a]).
Clearly, a full-time judge may give presentations of the type described as an extra-judicial activity (see e.g. Opinion 15-179) and may generally accept reasonable compensation, such as an honorarium, if offered (see e.g. Opinions 18-106;14-35; 22 NYCRR 100.4[H] [setting forth certain limitations]). Ordinarily, we would expect that a judge may serve as one of the initial founders, directors and incorporators of a not-for-profit organization that is not likely to engage in litigation or controversial activities (see e.g. Opinions 16-40; 12-22; 96-98).
Here, however, the specific structure of the proposed not-for-profit entity would create an impression that it is designed to benefit the judge personally. Of particular concern, the judge would be the sole compensated lecturer for the entity and the sole directors would be the judge and members of the judge’s immediate family. In effect, this not-for-profit corporation would be closely held by the judge’s family and would enable the judge – and no one else – to charge fees for lecturing on topics of implicit bias, race, gender and diversity and inclusion issues. On these facts, we conclude the judge may not participate in the proposed not-for-profit corporation.