February 19, 2009
Please note that Opinion 05-134, which is cited herein, has been overruled (see Opinion 12-44 [advising that a judge may not preside at and offer a critique of a mock trial to be held during a trial skills training program for prosecutors]). Nonetheless, the Committee notes that the present Opinion remains in effect because the mock trial is a CLE program presented by a bar association, and there is no indication that the audience will be limited to a particular "side" such as prosecutors (cf. Opinion 89-66).
This responds to your inquiry (09-26) in which you ask whether it is permissible to participate as the justice in a mock summary jury trial which will be presented by the [ ] County Bar Association as a CLE.
A judge may speak, write, lecture, teach and otherwise participate in extra-judicial activities subject to certain restrictions (see 22 NYCRR 100.4[B]). Accordingly, the Committee has previously determined that there is no ethical prohibition to a judge presiding over a mock trial provided the judge does not discuss pending or impending cases and the presentation is not used as a means to promote a particular point of view or support a particular side.
Enclosed, for your convenience, are Opinions 05-134 and 89-66, which address this issue.
Very truly yours,
George D. Marlow
Justice of the Supreme Court