January 30, 2014
Digest: Under the specific circumstances presented, a judge who issued a decision on a novel legal issue may not attend a presentation at a bar association function at which the judge’s decision will be singled out for discussion by an individual associated with one side of the case, while the case is pending or impending. Once the case is no longer pending or impending, however, the judge may attend such a program.
Rule: Judiciary Law §212(2)(l); 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(6); 100.4(A)(1)-(3); 101.1; Opinions 13-32; 13-06; 09-11; 07-126; 87-28(a) (Vol. I).
The inquiring judge states that he/she has issued a decision on a novel legal issue relating to witness testimony. The judge asks whether he/she may attend a presentation at an upcoming bar association event, at which an individual who provided shelter to the witness before and during the trial and has professional connections to the witness will discuss that legal issue with reference to the judge’s decision in the case. The judge states that the bar association’s event is open to lawyers and the general public, and the judge will not “comment on the case in any way.”
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 engage in extra-judicial activities that are not incompatible with judicial office and do 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 judicial duties (see 22 NYCRR 100.4[A]-). A judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B]) but must not convey nor permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must also avoid impermissible ex parte communications concerning a pending or impending proceeding (see 22 NYCRR 100.3[B]). A “pending proceeding” is one that has begun but has not yet reached final disposition, and an “impending proceeding” is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U]-[V]; see also Opinion 13-06 [noting that a case remains “pending or impending” if it “has not been finally resolved and the time for appeal has not yet been exhausted”]).
Ordinarily, a judge may attend bar association functions and continuing legal education programs, even if they relate to legal issues that may come before the judge (see 22 NYCRR 100.3[B] [judges must “maintain professional competence” in the law]; Opinion 07-126 [“participation in bar associations and other legal organizations is to be encouraged”]; cf. Opinion 13-32 [judge may obtain the advice of a disinterested expert on the law with respect to a legal issue that is not currently before the judge but which the judge anticipates may come before him/her in the future]).
This principle is, however, subject to some limitations. For example, the Committee has advised that it is inappropriate for judges to attend a training seminar on driving while intoxicated that is “prepared and presented by the County District Attorney’s office expressly for the judges in that county before whom members of the District Attorney’s office will appear” in their capacities as prosecutors of such cases (Opinion 87-28[a] [Vol. I]). The Committee explained that, under the circumstances presented, attending a partisan presentation by prosecutors with respect to the treatment to be accorded to a specific category of criminal cases “would be akin to preliminary ex-parte communications regarding cases of this type” and that there would be an appearance of impropriety when such cases are subsequently brought before “judges who have already been exposed to partisan conditioning by way of an ‘educational seminar’” (id.).
Under the unique circumstances presented here, given the striking novelty of the legal issue and the strong connections of the speaker to one side of the case, the Committee believes it would create an appearance of impropriety if the judge were to attend the event while the matter is pending or impending. Among other things, it could create the appearance that the inquiring judge has “been exposed to partisan conditioning” in the matter (see Opinion 87-28[a] [Vol. I]) or even that one side may have had a special opportunity to influence the judge ex parte through a lecture about the case (see 22 NYCRR 100.2[C]; 100.3[B]).
However, once the case is completely concluded, so that there is no appreciable risk that it will return to the courts for “a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding” (Opinion 09-11), the judge may attend the event.1
1 Although the judge provides certain information about the history of the case, the question of whether this particular case is no longer pending or impending is primarily a legal issue that the Committee cannot address (see Judiciary Law §212[l]; 22 NYCRR 101.1).