Opinion 13-147

October 24, 2013

Digest:         A judge may proctor a friend’s engineering certification exam, where the certifying organization lists “government official” as one of several categories of acceptable proctors.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); Opinions 12-10; 11-17; 09-09.

Opinion:

         The inquiring judge asks if he/she may serve as an uncompensated proctor for a friend who plans to take a certification exam in the field of engineering. The judge states:

The [certifying organization] provides that the exam may be taken on an individual basis and that it is to be proctored one of the following ways: by testing at a designated testing center, or in person proctoring by a member of a school or university’s faculty, a member of the clergy, a government official or another (certified) member of the association. When proctored by another member of the association that person may not be a co-worker, supervisor or subordinate of the candidate.

The proctor’s duties entail being present through the exam, verifying that the exam is not taken with outside assistance, or the use of impermissible reference materials (essentially, certifying that there was no cheating on the exam), and sealing and returning the exam by mail within a specified time-frame after receipt.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not lend the prestige of judicial office to advance the private interests of the judge or others and may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]). However, a judge may engage 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]).

         The Committee has previously advised that a judge may witness and authenticate a relative’s signature on a foreign pension document, where the document lists “judges” as one of several categories of acceptable witnesses (see Opinion 12-10). The Committee noted that the judge’s role was “to witness his/her relative’s signature and validate, for the foreign country’s military pension, the identity of the judge’s relative. The judge will be merely attesting to facts within his/her personal knowledge and observation” (id.).

         In the Committee’s view, the judge’s proposed role as proctor while his/her friend takes the certification exam is analogous, as the certifying organization lists “government official” as one of several categories of acceptable proctors, and the judge will be merely attesting to facts within his/her personal knowledge and observation. It is therefore permissible.¹

_______________________________

     ¹ Although the Committee has not previously addressed the specific issue of whether a judge may proctor an exam, the Committee has advised that a judge may serve as an adjunct professor and may “fully engage in all legal activities” of the faculty association (Opinion 11-17; see also Opinion 09-09 [judge may volunteer his/her services as an alumni advisor for a law school journal]). The activities of a professor are likely to include, at least occasionally, proctoring exams.