Joint Opinion 12-62/12-69
April 26, 2012
Digest: A judge who agrees to lecture at a continuing legal education program and thereafter learns that the sponsoring organization is using the judge’s name and title to solicit attorneys to attend the program, in a manner that clearly and improperly implies that attendance will put the attorneys into a special position to influence the judge, should withdraw from the program and object in writing to the sponsoring organization.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); Opinions 12-61; 11-37; 11-35; 10-24; 09-181; 07-80; 06-105; 04-133; 04-15; 03-92; 00-01.
Opinion:
Two judges who agreed to speak at a continuing legal education program hosted by a business organization, without compensation, later learned of advertisements prepared by the Organization without either judge’s knowledge or consent. In Inquiry 12-62, the judge states that “[u]pon reviewing the mailer it became immediately apparent to me that the topic about which I was advertised to speak was not as it had been [previously] represented.” In particular, the judge is concerned that the mailer contains a representation to attorneys that the program “is a ‘convenient way to spend a day with the judges you come before’ and to ‘tailor’ or ‘customize your presentation to each judge’s specific likes and dislikes.’” In Inquiry 12-69, the judge emphasizes his/her concern that “the marketing seems to use the judges as the attraction and inappropriately stresses the importance of getting to know the judges in a setting outside the courtroom.” As an example, the judge points to the Organization’s representation to attorneys that “we will provide you with the opportunity to see and be seen by the judges that may decide your next case,” which, in the judge’s view, could “imply[] that meeting the judge in this setting may improve their chance of prevailing on a case before that judge.” Although the judges promptly withdrew from the program, they indicate that the marketing has not been recalled or revised, and therefore seek guidance about what they should do.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others and must not convey or permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Subject to these and other limitations, a judge may speak, teach and lecture as long as doing so is not incompatible with judicial office, and does not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office or interfere with the proper performance of the judge’s judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]).
Here, the inquiring judges agreed to a permissible extra-judicial speaking engagement1 and then discovered that the sponsoring organization was using their names and titles to solicit attorneys to attend the program in a manner that clearly and improperly implied, among other things, that attendance would put the attorneys into a special position to influence the judges.2 The marketing campaign was undertaken without the judges’ knowledge or consent and in a manner that was grossly insensitive to the judges’ ethical obligations; had the sponsoring organization asked for permission, the judges would have emphatically refused (see 22 NYCRR 100.2[C]; see also 22 NYCRR 100.2[A]).
Although this particular scenario appears to be a matter of first impression, the Committee believes that its prior opinions regarding a not-for-profit entity’s unauthorized use of a judge’s name or photograph for fund-raising purposes provide guidance here. Under such circumstances, the Committee has advised that the judge must object to the organization in writing (see Opinions 12-61; 11-35; 07-80; 04-133; 03-92). Occasionally, it is also necessary for a judge to refrain from attending an event in order to avoid the appearance of ratifying the organization’s conduct (see Opinion 11-35).
Therefore, under the circumstances presented here, the Committee concludes that the inquiring judges should (as they have already done) cancel their participation in the program (see Opinion 11-35) and object in writing to the business organization (see Opinions 12-61; 11-35; 07-80; 04-133; 03-92). In their written objections, the judges should, to the extent they have not already done so, request a retraction, “advise the [organization] to cease from using the advertisement in any form,” and “instruct the [organization] not to use [their] name in a similar manner in the future” (Opinion 12-61). Beyond this, the inquiring judges need not take any further action, as they “cannot control what the organization chooses to do in response to [their letters], and this Committee has no authority to advise or direct the organization with respect to its actions in this matter” (Opinion 11-35; see also Opinions 12-61; 07-80; 04-133; 03-92).
For future reference, the Committee notes that the appearance of impropriety created by the business organizations’s unauthorized marketing campaign is one that a judge is less likely to encounter when lecturing or teaching for law schools, bar associations, and other well-established and reputable continuing legal education providers. Such organizations, along with many others that a judge may be familiar with in his/her community, are typically very receptive to judicial ethics concerns.
In the Committee’s view, the public benefits when judges are able to accept speaking engagements for a broad range of organizations, not just those already familiar to judges. Yet, as shown in the present inquiries, some of these more unfamiliar organizations may be unaware of or insensitive to judicial ethics concerns.
When a judge has been asked to teach or lecture for an organization unfamiliar to the judge, the Committee believes that the judge him/herself is in the best position to assess the nature of the sponsoring organization and whether it is likely to be sensitive to judicial ethics issues.3 If the judge, in his/her sole discretion, questions the organization’s willingness or ability to take judicial ethics concerns into account in promoting the program, the judge should advise the organization that he/she will not participate in the program unless the judge has the opportunity to review marketing materials before they are disseminated. The Committee emphasizes that a judge need not take such steps if the organization is familiar to the judge or if the judge believes (mistakenly or not) that the organization will be adequately receptive to judicial ethics concerns.
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1 The Committee has advised that a judge may be a speaker or panelist in a wide variety of settings that do not cast doubt on the judge’s impartiality (see e.g. Opinions 10-24; 09-181), although the judge may not be compensated when speaking for a for-profit organization (see Opinions 04-15; 00-01).
2 The Committee reiterates, however, that a judge need not conceal his/her identity as a judge when participating in permissible extra-judicial activities (see e.g. Opinions 11-37; 06-105).
3 Thus, the Committee suggests (but does not require) that, before accepting a speaking engagement with an organization unfamiliar to the judge, the judge may wish to speak with the organizers or review the organization’s website or other information, in order to learn about the nature of the organization and whether they are likely to be sensitive to judicial ethics issues.