June 14, 2012
Digest: 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.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(9)(a)-(b); 100.4(A)(1)-(3); Opinions 11-83; 10-74; 09-208; 09-129; 09-84; 09-62; 09-58; 08-49; 07-97; 07-29; 06-77; 06-15; 05-134; Joint Opinion 03-84/03-89; Opinions 03-54; 98-73 (Vol. XVII); 96-44 (Vol. XIV); 95-121 (Vol. XIII); 93-82 (Vol. XI); 93-54 (Vol. XI); 91-104 (Vol. VIII).
A full-time judge who is a former prosecutor and now presides in criminal matters asks whether he/she may participate in the district attorney’s “upcoming trial advocacy program for young prosecutors as a judge of the mock trial competition.”
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]). A judge may engage in extra-judicial activities, including teaching and lecturing, as long as doing so does 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 and is not incompatible with judicial office (see 22 NYCRR 100.4[A] -; 100.4[B]).
In considering the present inquiry, the Committee has decided it must overrule Opinion 05-134. To provide context and clarity about the extent of the change, we will provide an overview of the applicable ethical considerations and the reasons behind the change.
Composition of the Audience
The inquiring judge has described an audience for this trial advocacy program that is “one-sided” in nature, in that it will consist solely of “young prosecutors.” The program is not open to the public at large or to public or private criminal defense counsel.
The Committee observes that there are competing principles to consider here. First and foremost, the Rules Governing Judicial Conduct reflect the paramount public interest in maintaining and promoting public confidence in the judiciary’s impartiality and integrity. This interest is not only stated expressly at the beginning of Part 100 (e.g. 22 NYCRR 100.1; 100.2), but it also underlies virtually every individual Rule. Nonetheless, as long as the first interest is adequately protected, it may also benefit the public interest when an organization that is involved in litigating only one side of an issue is exposed to the kind of broad and nuanced perspective that a judge can offer.
Frequently, the simplest way for a judge to avoid any possible appearance of impropriety when he/she is invited to teach for one “side” is to ask the sponsor of the event to invite the other “side” to attend. Where the sponsor is amenable to this approach, the audience may be broadened in a variety of ways, including, but not limited to, co-sponsoring the event with one or more local bar associations, so that the event will be open to all local attorneys and not just those from one side.
However, if the sponsor is unwilling or unable to invite a general audience, this is not necessarily, standing alone, a bar to the judge’s participation. For example, the Committee has advised that the fact that a judge’s intended audience consists solely of law enforcement personnel does not, in and of itself, render a speaking engagement ethically impermissible (see Opinions 09-208 [members of a local sheriff’s association]; 09-62 [members of a law enforcement agency]; 06-15 [New York State Fire Police]; 98-73 [Vol. XVII] [aspiring police officers]; 96-44 [Vol. XIV] [employees of a sheriff’s department]). Indeed, the Committee has stated that “it is permissible for a judge to present or participate in educational programs for law enforcement personnel that do not compromise the judge’s apparent or actual impartiality” (Opinion 07-29; see also Opinions 06-15; 98-73 [Vol. XVII]); 96-44 [Vol. XIV]).
Outside the law enforcement context, the Committee has similarly advised that, subject to certain limitations, a judge may lecture to audiences consisting of, for example: prosecutors (see Opinion 11-83); lawyers, staff, and interns of a New York State agency (see Opinion 07-97); staff attorneys of a public authority (see Opinion 06-77); members of the National Association of Criminal Defense Lawyers (see Opinion 03-54); real estate managers (see Opinion 93-82 [Vol. XI]); attorneys in the New York City Corporation Counsel’s office (see Opinion 93-54 [Vol. XI]); and a local school district’s bus drivers (see Opinion 91-104 [Vol. VIII]). Indeed, the Committee has advised that “the fact that the lawyers who constitute the audiences for such events may be advocates on behalf of particular groups does not render such participation suspect” (Opinion 06-77; accord Joint Opinion 03-84/03-89).
Neutrality of Topic
When the audience is not a “general” or “balanced” audience but, instead, comprises only one “side,” a judge must take particular care that his/her topic will not compromise the judge’s apparent or actual impartiality (see Opinion 07-29) and does not manifest a predisposition to decide a particular type or class of case a certain way (see 22 NYCRR 100.2[A]; 100.3[B][a]-[b]; Opinion 06-15).1
As a result, the Committee has advised that in such situations, a judge must “exercise caution to avoid the perception that [the judge is] providing advice on litigation strategy or tactics” (Opinions 11-83; accord Opinions 09-62; 06-77; Joint Opinion 03-84/03-89). In particular, “a judge must not be perceived as giving what amounts to partisan advice on questions of strategy or tactics as to how the lawyer is best likely to succeed in such cases on behalf of their particular clients...especially...[if]... cases involving the very subject matter of the programs are likely to come before the judge” (Joint Opinion 03-84/03-89).
Thus, the Committee has advised that a judge may not teach police officers how to prosecute traffic cases successfully, because, “in effect, [the judge] would be advising the prosecution how to obtain convictions” (Opinion 95-121 [Vol. XIII]). Nor may a judge provide guidance to local police about how to draft legally sufficient accusatory instruments (see Opinion 07-29) or about proper courtroom decorum and demeanor when testifying in the courtroom (see Opinion 09-84). For similar reasons, a judge may not teach cross-examination techniques to defense attorneys newly employed by an institutional provider of indigent services that regularly appears in the judge’s court (see Opinion 08-49).
However, as long as a judge “exercise[s] caution” to avoid the perception that he/she is providing partisan advice on litigation strategy or tactics (see Opinion 06-77) and does not manifest a predisposition to decide a particular type or class of case a certain way (see Opinion 09-62), a judge may give an ethics presentation at a prosecutors’ training session (see Opinion 11-83); lecture high school students who are enrolled in a mock police academy internship program about the Penal Law and the Criminal Procedure Law (see Opinion 10-74); speak to a sheriff’s association about the types of cases handled by the court, how they are handled, and the court’s case load (see Opinion 09-208); provide forensic science and crime scene processing training to a law enforcement agency that regularly appears before the judge (see Opinion 09-62); give a seminar on appellate practice to staff attorneys of a public authority (see Opinion 06-77); teach fire police officers about the duties, responsibilities, and laws pertaining to their position (see Opinion 06-15); participate in legal education programs sponsored by advocacy groups (see Joint Opinion 03-84/03-89); teach a Vehicle and Traffic Law class to aspiring police officers (see Opinion 98-73 [Vol. XVII]); and explain the procedures and operations of the court at a sheriff’s department training program (see Opinion 96-44 [Vol. XIV]).
The Present Inquiry
The question, therefore, is whether it is possible to preside at and offer a critique of a mock trial to be held during a trial skills training program for a “one-sided” audience without creating a perception that the judge is providing partisan advice on litigation strategy or tactics.
In 2005, the Committee cautiously approved a judge’s participation in a mock trial within a trial skills training program for a one-sided audience (see Opinion 05-134 [subject to several restrictions, a judge may preside at and offer a critique of a mock trial to be held during a trial skills training program for attorneys who represent battered women in custody proceedings]). Nonetheless, the Committee recognized that, where “the purpose of the training program is ... to improve the skills of attorneys who represent only one side of a particular kind of case, it is less clear that the judge can participate and still comply with the Rules Governing Judicial Conduct” (id. [emphasis added]).
On further consideration, the Committee concludes that it would be difficult, if not impossible, for a judge who is presiding over and critiquing a mock trial as part of a trial advocacy program for a “one-sided” audience to avoid the appearance that he/she is teaching or giving partisan advice on litigation strategy or tactics to that “side” – even when the judge attempts to abide by the restrictions imposed by Opinion 05-134.
Accordingly, the inquiring judge should not preside at and offer a critique of a mock trial to be held during a trial skills training program for prosecutors.2
The Committee overrules Opinion 05-134 and modifies Opinions 09-58 and 93-54 (Vol. XI) to the extent they are inconsistent with this Opinion.3
1 As at other times, the judge should not discuss pending or impending cases in the United States or its territories (see 22 NYCRR 100.3[B]).
2 The Committee notes that the rule for judges is now consistent with the rule for non-judicial employees (see Opinion 09-129 [a judge should not permit his/her law clerk to critique a trial advocacy course offered by the New York Prosecutor’s Training Institute]).
3 The Committee modifies Opinion 93-54 (Vol. XI), rather than overruling it, because there is nothing inherently unethical about providing legal instruction to the attorneys in the New York City Corporation Counsel’s office, outside of the trial advocacy context, in a manner that does not create a perception that the judge is providing partisan advice on litigation strategy or tactics (see e.g. Opinion 07-97).