April 8, 2014
This responds to your inquiry (14-31) asking whether it is ethically permissible for you to lecture, as part of a training program for appellate and trial prosecutors, on effective and ineffective techniques when litigating in the Appellate Division. Only prosecutors and law enforcement personnel will be in attendance.
A judge may speak, write, lecture, teach and participate in educational programs, conferences, symposia, etc., on matters about the law, legal system, and administration of justice (see 22 NYCRR 100.4[B]). However, a judge must not be perceived as giving strategic or tactical advice on a partisan basis. That would appear improper and would cast doubt on the judge’s ability to be impartial (see 22 NYCRR 100.2). Thus, it is ethically impermissible to give partisan advice on litigation strategy. However, it is ethically permissible to lecture the same audience on appellate law and practice in general, but without comment on pending or impending cases (see 22 NYCRR 100.3[B]).
Enclosed, for your convenience, are Opinions 12-44; 09-84; 08-49; 06-77 and Joint Opinion 03-84/03-89, which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)