May 16, 2013
This responds to your inquiry (13-67) asking whether you may speak at a luncheon sponsored by a local substance abuse treatment facility and whether you may attend an open house and ribbon cutting ceremony commemorating the opening of a new residence operated by the same treatment facility. You indicate that although you do not directly refer defendants to this treatment facility, defendants who are appearing or have appeared in your court may be referred there by others. In addition, defendants who have been referred to this facility may appear before you for re-sentencing. While staff and other providers are expected to attend, it is not anticipated that any defendants referred to the facility will attend the luncheon.
The Committee has previously advised that the mere fact that parties representing all sides of a particular issue will not be in attendance when a judge gives a presentation, does not, standing alone, prevent a judge’s participation. Rather, when the audience is not balanced, “a judge must take particular care that his/her topic will not compromise the judge’s apparent or actual impartiality . . . and does not manifest a predisposition to decide a particular type or class of case a certain way (Opinion 12-44). “As a result, the Committee has advised that in such situations, a judge must ‘exercise caution to avoid the perception that [the judge is] providing advice on litigation strategy or tactics’” (id.). Accordingly, subject to these limitations, you may speak at the luncheon.
There is also no ethical prohibition to attending the open house and ceremony as long as you do not discuss court-related issues or comment on pending or impending cases in any court within the United States or its territories (see 22 NYCRR 100.2[A]; 100.3[B]).
Enclosed, for your convenience are Opinions 12-44, 09-175, and 07-97 which address these issues.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)