October 23, 2003
Digest: Under the particular circumstances, invitations to lawyers and experts to serve as guest lecturers at a law school class being taught by two judges before whom such persons appear regularly in court, should be extended by the law school and not the judge.
Rules: 22 NYCRR 100.2(A),(C); 100.4(B); 100.4(H)(1)(c)
Two judges plan to teach a course at a law school. The course is intended to present a practical approach to the litigation of a specific kind of action. As part of the curriculum the judges would like to invite a number of lawyers and experts who regularly appear before them in such actions to serve as speakers. The guest lecturers will not be compensated. The question posed is whether there is any impediment to their asking such lawyers and experts to serve as guest speakers.
At the outset, we note that there is certainly no impediment to the judges teaching a course at a law school, nor is there any ethical requirement that formal notice be given to the Office of Court Administration. See, e.g. 22 NYCRR 100.4(B); 100.4(H)(1)(c).
The question, however, of the judges asking lawyers and experts who regularly appear before them to serve as speakers, does raise, in this particular instance, possible ethical concerns. We note that the course is limited to the study of a litigation in a particular area of the law. The bar and the expert witnesses who specialize in this area are relatively limited in number and we can assume that the persons to be invited are prominent in the field. Litigation in this area can be contentious, drawn out and subject to continuing and frequent judicial involvement. Taken together, such considerations raise the question of whether by inviting certain members of the bar that practice before them regularly, and experts who also appear regularly, and therefore, of necessity, excluding others who might also be regularly appearing before them, the judges might be perceived as lending the prestige of judicial office to advance the private interests of those being invited or in some way evincing partiality. 22 NYCRR 100.2(A),(C). Regardless of the merits of such conclusions, a personal invitation from the judges might give rise to such claims and consequently to ancillary litigation based merely upon the fact of the judges having extended the invitations.
We therefore conclude that the better course would be for the law school itself to extend the invitations and not the judges. Thus, the decision of who to invite will be that of the school and not the judges. The exact mechanism for providing names for the school to choose from we leave to the sound discretion of the judges and the school.
Finally, it remains to be said that this opinion is not intended to enunciate a policy that would apply to any and all situations involving judges who serve as law school teachers. Rather the considerations outlined above, we believe, warrant the advice being rendered in light of this particular set of circumstances.