June 11, 2015
Digest: A judge may speak at an academic conference on the topic of international, federal, and state approaches to human rights issues, subject to generally applicable limitations on judicial speech and conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(9)(a)-(b); 100.4(A)(1)-(3); 100.4(B); Opinions 15-93; 15-57; 14-35; 13-29; 06-115; 03-84/03-89; 98-87; 97-128.
A full-time judge who presides over criminal cases asks if he/she may be the keynote speaker at a university conference focusing on international, federal, and state responses to human rights issues. The event is not a fund-raiser. The judge proposes to speak about the judge’s previous employment at a human rights agency. In addition, the judge may also compare and contrast approaches to human rights at the various jurisdictional levels, and discuss his/her experiences with related “initiatives and task forces, policies, legislation and (now resolved) legal cases that [he/she has] worked on.”
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 lecture, teach and otherwise participate in extra-judicial activities 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]-; 100.4[B]). In any speaking engagement, a judge must forego commenting about any pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]) and must not make pledges, promises or commitments inconsistent with the impartial performance of the adjudicative duties of judicial office (see 22 NYCRR 100.3[B][a]-[b]).
Subject to these limitations, the judge may speak on this topic at this type of forum (see, e.g. Opinions 15-93 [judge may participate in a local college’s program on perceptions and realities of the criminal justice system]; 15-57 [judge may participate in a conference focusing on women, justice and the judiciary, co-sponsored by a law school]; 14-35 [judge may speak about Bill of Rights at a public school teachers’ conference]; 13-29 [judge may speak regarding structured settlement process at conference of non-profit association of legal and financial professionals]; 06-115 [judge may attend and participate in conference co-sponsored by a non-profit, charitable organization and involving events and programs of an educational, cultural, or civic nature]; 03-84/03-89 [judge may lecture at conference focusing on consumer rights litigation being sponsored by a national consumer law organization]; 98-87 [judge may participate in conference on domestic violence and lecture on felony domestic violence part over which judge presides, but may not comment on pending or impending cases or manifest a predisposition in deciding case]; and 97-128 [judge may speak at international conference concerning travel, tourism law and related matters]).
Neither the sponsoring organization’s identity (a university), the intended audience (college students), nor the announced topic (human rights issues) appears likely to compromise the judge’s neutrality, detract from the dignity of judicial office, or otherwise create an appearance of impropriety (see Opinions 15-93; 13-29). The judge must, of course, take care not to comment on any pending or impending case in the United States or its territories nor allow the presentation to suggest a predisposition to decide in any particular way a matter that may come before the judge (see 22 NYCRR 100.3[B]-; see also Opinion 15-93 & fn.1 [noting that cases remain “pending or impending” for purposes of the public comment rule “if the matter has not been finally resolved and the time for appeal has not yet been exhausted”]).