Judges and judicial employees who are covered by Codes of Conduct promulgated by the Judicial Conference of the United States may receive outside earned income, make speeches and appearances, write articles, and engage in extrajudicial activities only in conformity with the provisions of both the Codes of Conduct and these regulations.
Title VI of the Ethics Reform Act of 1989 (the Act) applies to officers and employees of the judicial branch. However, the Judicial Conference has delegated its administrative and enforcement authority under the Act for officers and employees of the Supreme Court of the United States to the Chief Justice of the United States and for employees of the Federal Judicial Center to its Board. For this reason, the definitions of "judicial officer or employee" and "covered senior employee" exclude the judicial officers and employees of the Supreme Court and the Center. For purposes of Title VI and these regulations, employees of the Tax Court and the Court of Appeals for Veterans Claims are employees of the judicial branch.
"Outside earned income" includes anything of value received in consideration for the provision of services by a covered senior employee with the exceptions specified in § 3(b). Under § 3(b)(5), the advance payment of permissible royalties, fees, or the functional equivalent thereof, is not outside earned income if it must be deducted from amounts that subsequently become payable. A covered senior employee may, under § 3(b)(6), determine outside earned income in a manner consistent with his or her income tax return, or may allocate any amount received in a calendar year over two or more years pursuant to a good faith allocation reflecting the work done. The outside earned income limitation that applies to an individual who becomes a covered senior employee during a calendar year is determined on a pro rata basis by dividing the annual income limitation by 365 and multiplying it by the number of days during that calendar year that the individual serves as a covered senior employee. Income earned before an individual becomes a covered senior employee is not subject to this limitation.
A covered senior employee, in planning for compliance with the limitation on outside earned income, may be required to estimate in advance income producing expenses for a calendar year. Should the actual expenses turn out to be less than anticipated, causing the outside earned income to exceed the statutory limitation, the requirements of § 3 are satisfied if the resulting excess is refunded to the payor promptly after the close of the year.
The Act prohibits a judicial officer or employee from accepting any "honorarium" and defines "honorarium" as "a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government)." The ban on the receipt of honoraria does not preclude a judicial officer or employee from accepting compensation for a series of thematically connected presentations, works, or articles not directly related to his or her official duties so long as the compensation is not being paid because of the individual's status with the judicial branch. Also, payments for artistic and literary works or performances generally are not considered honoraria and are excluded from the ban. Nor does the ban prohibit reimbursement of actual expenses such as typing, editing, and reproduction costs incurred in connection with an appearance, speech or article.
The general prohibition standing alone could be read to foreclose the receipt of compensation for appearances, lectures, and speeches in the context of a bona fide educational program. This was clearly not the intent of Congress, however, since Title VI specifically approves teaching for compensation by judicial officers and senior employees so long as an appropriate entity designated by the Judicial Conference gives prior approval to such teaching and so long as the compensation received, together with other outside earned income, does not exceed the 15% limit on outside earned income. (Compensation received by senior judges for teaching is excluded from the 15% limit on outside earned income if the judge retired from regular active service under 28 U.S.C. § 371(b) and is certified as having met the requirements of 28 U.S.C. § 371(e) or retired on permanent disability under 28 U.S.C. § 372(a).) Thus, the prohibition on receipt of honoraria does not foreclose teaching for compensation.
Compensation received from a law school for writing a law review article is an example of an honorarium. On the other hand, compensation received as the author or co-author of a bona fide legal treatise or book is an example of compensation for scholarly writing more extensive than an article and therefore is not an honorarium. Of course, compensation for writing more extensive than an article is excluded from the definition of an honorarium only if it is bona fide compensation for the writing, e.g., compensation received from an established publisher pursuant to usual and customary contractual terms.
The same rules apply whether the writing is legal or nonlegal, scholarly or otherwise. For example, compensation received for writing a nonlegal article for a newspaper or magazine is an honorarium. On the other hand, compensation received as the author or co-author of a nonlegal book is not an honorarium.
The definition of a prohibited "honorarium" excludes a suitable memento or other token in connection with an occasion or article, provided it is neither money nor of commercial value. The test for commercial value is whether the memento would have commercial value in the hands of the recipient. Examples of suitable mementos include a plaque or letter opener. Examples of "other tokens" that are not honoraria include benefits incidental to attending the occasion or to the publication of an article such as food and beverages consumed, waiver of a registration fee, copies of publications containing articles, reprints of a law review article, a free subscription provided to the author of the article, or tapes of appearances or speeches and similar items that provide a record of the event.
The prohibition against practicing a profession that involves a fiduciary relationship includes the providing of legal, real estate, consulting and advising, insurance, medicine, architectural, or financial services when those services involve such a relationship. The prohibition does not apply to service by a covered senior employee as an executor or trustee of a family estate or trust as permitted by the Codes of Conduct where the covered senior employee does no more than provide the service that would be provided by a lay person in the same capacity. Compensation received for such services is subject to the 15 percent limitation on outside earned income.
Covered senior employees are required to notify the authority designated to grant approvals and obtain approval prior to engaging in compensated teaching activities. Further, during the performance of a previously approved teaching commitment, approval is required prior to any material increase in the compensation or the time required. Those who have previously secured approval for compensated teaching pursuant to a long-term contract must reapply for approval prior to the commencement of any new academic year.
The Act does not define "teaching." These regulations define it to include meaningful participation in bona fide components of an educational curriculum or plan, regardless of the duration or format of the particular program in which the covered senior employee participates. The statutory authority to "teach" for compensation thus includes permission to participate in the educational program of an accredited institution in the manner in which that institution plans and carries out its teaching function. When speeches and lectures are sponsored by and presented within the overall educational program of an accredited institution, the Conference believes that they do not provide the occasion for any of the evils Congress was seeking to avert and accordingly, they should qualify as "teaching." Thus, a lecture, lecture series, symposia, moot courts, and jurist-in-residence programs may be compensated as "teaching," provided, of course, the strictures of the Codes of Conduct are met. Teaching may also include participation in programs sponsored by bar associations or professional associations or other established providers of continuing legal education programs for practicing lawyers. Participation in bar review courses or in the preparation and grading of bar examinations also qualifies as teaching.
The Codes of Conduct permit a covered senior employee to receive compensation for part-time teaching so long as (1) the compensation received is reasonable in amount and does not exceed that normally received by others for the same activity, (2) the source of the compensation does not give the appearance of impropriety, and (3) the teaching activity does not interfere with the performance of judicial duties. These requirements are continued as criteria for approval of teaching requests.
Covered senior employees who wish to participate in a symposium, lecture series, or other teaching activity of limited duration and receive compensation therefor must secure the same prior approval as those who teach conventional courses for compensation. No such approval is required for teaching when no payment is received or when payment is received only to reimburse the ordinary and necessary expenses incurred in providing the teaching services, such as travel, lodging, and meals for the covered senior employee and a relative accompanying him or her; such reimbursement of expenses is not "compensation." No prior approval is required for compensated teaching activity of an employee of the judicial branch whose basic pay is less than 120 percent of the minimum rate of basic pay payable for GS-15 of the General Schedule.
In addition to the civil penalty provided in 5 U.S.C. App. § 504(a), a judge covered by the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 332(d)(1), 351 to 364) who violates these regulations shall be subject to discipline as provided in that Act and any other judicial officer or employee who violates these regulations shall be subject to discipline in accordance with existing customary practices.