Opinion 16-124

September 8, 2016

Digest:         A judge may mentor a high school student through a not-for-profit mentorship program, subject to generally applicable limitations on judicial speech and conduct.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.4(A)(1)-(3); Opinions 16-34; 15-201; 15-93; 14-181; 13-13; 12-113; 12-22; 10-188; 05-140; 05-71; 99-77; 99-21.

Opinion:

         A full-time judge asks if he/she may volunteer as a mentor to a low-income student at a private high school through a charitable program which seeks to provide regular and long-term mentoring to students who might be “at risk for falling off-track” academically. Mentors are expected to “encourage” students and be “supportive, positive, and great listeners” to help them reach “their fullest potential” at the school. The judge and student will have no financial connection, and there is no indication that the program or the student have had, or are expected to have, any involvement in litigation or the criminal justice system.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge may nonetheless participate in extra-judicial activities that are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

         Thus, the Committee has advised that a judge may: participate as a panelist and mentor in a philanthropic, non-commercial luncheon for young minorities (see Opinion 16-34); mentor formerly incarcerated individuals returning to society, where the mentees are unlikely to appear before the judge and other conditions are met (see Opinion 05-140); serve as officer or director of a non-profit organization that seeks to help high school students become responsible citizens by educating them about the law (see Opinion 12-22); serve on a board which seeks to prevent juvenile delinquency, where the organization is unlikely to appear before the judge (see Opinion 99-21); co-chair a citizens task force to reduce teen violence, provided the judge avoids controversial issues, litigation, fund-raising and other activities incompatible with judicial office (see Opinion 99-77); serve on an advisory council or focus group to improve school attendance, provided the judge does not preside over truancy cases and other conditions are met (see Opinions 12-113; 13-13); serve on an advisory board for a non-profit group that educates and advises addicts, provided the judge does not give legal advice to or raise funds for the organization, does not make referrals to the organization and will disqualify him/herself from any case if the organization appears in the judge’s treatment court (see Opinion 15-201).

         Conversely, a judge may not serve as a mentor to a teenager who had recently appeared before the judge in a Persons In Need of Supervision (PINS) truancy proceeding (see Opinion 14-181). Because the proposed mentee was a party before the judge, the Committee advised that a mentorship relationship would result in an appearance of impropriety (id. [citations and footnote omitted]):

It would directly interfere with the proper performance of the judge’s judicial duties, in that it would require the judge to disqualify him/herself from a specific pending matter which is properly before the judge. It could also potentially cast doubt on the judge’s impartiality in the present truancy proceeding, or raise questions about the judge’s ability to be impartial in PINS cases generally, as other alleged truants might reasonably fear the judge was, in effect, biased against them because he/she did not offer to mentor them.

These concerns are clearly inapplicable where, as here, the not-for-profit mentorship program and the proposed mentee have no connection whatsoever with the judicial system or the judge’s court. Rather, this mentorship program is purely academic and social and does not require the judge to engage in fund-raising or other impermissible activities. Thus, the judge may participate, subject to generally applicable limitations on judicial speech and conduct (see Opinion 15-93). For example, if the student were to become involved in a PINS or other proceeding, the judge must not attempt to intercede on the student’s behalf (see e.g. Opinions 10-188; 05-71).