October 19, 2006
Please note that this Opinion has been clarified by Opinion 07-15.
Digest: Judges of an appellate court may participate in a “brown bag” lunch series with members of a local bar association, to discuss general issues of law and appellate practice, as long as pending or impending cases are not discussed and attorneys who have matters pending before that court are not present.
Rules: 22 NYCRR 100.1; 100.2(A);100.3(B)(6); 100.3(B)(8); 100.4(B); Opinions 06-77; 05-65.
The inquiring judge and the officers of a local bar association would like to establish a new program for the association, in which Appellate Division judges will regularly meet with association members for a “brown bag” lunch. As proposed, all members will be welcome to attend, excluding attorneys with pending appeals before the participating judges until those appeals are decided.
The purpose of the program will be to familiarize the bar with the procedures, functions and rules of the Appellate Division, and to ensure the judges remain familiar with concerns of members of the bar. The participants will discuss general issues of law and appellate practice. The discussion of particular cases that are pending or have been decided will be prohibited.
The Rules Governing Judicial Conduct permit judges to speak, write, lecture, teach and participate in educational programs, conferences, and symposia on matters concerning the law, the legal system, and the administration of justice, including appellate practice issues. 22 NYCRR 100.4(B); Opinion 06-77. Soliciting input from attorneys who may appear before the Appellate Division, concerning general issues of law and appellate practice, is thus permissible. Opinion 05-65.
With these guidelines in mind, the Committee believes the proposed “brown bag” lunches are permissible, both as a means for Appellate Division judges to educate members of the bar about general issues of law and appellate practice, and as a means for such judges to solicit input from practicing lawyers on such topics.
The Committee cautions, however, that participating judges should be careful not to comment on any pending or impending proceeding in any court in the United States, nor should they allow any ex parte communications from participating lawyers concerning any pending or impending matter before the court. Judges should also exercise caution to avoid the perception they are giving partisan advice on questions of strategy or tactics as to how the lawyers are likely to succeed. 22 NYCRR 100.1; 100.2(A); 100.3(B)(6); 100.3(B)(8); Opinion 06-77.