March 10 - 11, 2010
Digest: A judge may not endorse or promote education programs offered by a particular company, but may include the company’s name and contact information on a list of possible programs a defendant may choose to complete in order to earn a reduction or dismissal of pending charges. If no other programs exist, the judge may provide a defendant with an information sheet about the company.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C): Opinions 08-35; 03-107; 99-151 (Vol. XVIII); 98-98 (Vol. XVII); 97-16 (Vol. XV).
A judge has learned about a company that offers education programs designed for defendants who are charged with certain offenses such as unlawful possession of marijuana, unlawful possession of alcohol by a minor or first time petit larceny. The judge believes that defendants who complete such courses might be less likely to re-offend in the future. The judge asks whether it is ethically permissible to offer defendants the opportunity to complete an appropriate education program offered by the company in order to earn a reduction or dismissal of pending charges. According to the brochure the judge provided, the programs are low cost to the offender, no cost to the court and are available on-line.
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]).
The Committee previously has advised that judges cannot endorse or promote service providers, either actively or tacitly (see Opinion 03-107 [a judge should not permit a private, for-profit mediation program to place promotional brochures in the courthouse and should not suggest that parties use the service]; Opinion 99-151 [Vol. XVIII] [a judge may not be an advisor to, or be listed on the letterhead of, a for-profit company involved in courtroom automation]; Opinion 98-98 [Vol. XVII] [a judge should not submit a letter for publication in a bar association newsletter encouraging attorneys to enroll in the association’s fee-based legal referral service]; Opinion 97-16 [Vol. XV] [a judge may not submit a letter supporting a private business in its bid to continue providing services to a municipality]). However, a judge may include a particular defensive driving program that specifically targets drivers who are under age 25 in a list of defensive driving programs that defendants may complete as part of their sentences for committing traffic-related offenses (see Opinion 08-35).
Similarly, the judge in the present inquiry cannot endorse or promote education programs offered by a particular company. However, the judge may include the company’s name and contact information on a list of possible programs a defendant may choose to complete and earn a reduction or dismissal of pending charges, if such other programs exist. If no other programs exist, the judge may provide a defendant with an information sheet about the company.