November 30, 2015
This responds to your inquiry (15-179) asking whether you may accept an invitation to give a presentation on recognizing and reducing racial prejudice to an audience consisting exclusively of attorneys who represent a certain category of litigants in a specialized court; other categories of litigants, agencies and/or stakeholders are not invited. You state that you have lectured on this topic to a wide variety of audiences throughout the state, as part of a larger effort to reduce bias and prejudice by providing all participants in the specialized court “with a framework to think about how our own prejudices and biases could unintentionally affect the outcome of a case.”
The Committee has repeatedly advised that a judge may lecture and teach on matters relating to the law and the administration of justice. Although a judge must always take steps to maintain his/her impartiality and objectivity and must avoid commenting on pending/impending matters and although it is preferable to make any such presentation to a balanced audience, the mere fact that the audience is one-sided does not, in and of itself, prohibit you from making this presentation. 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). However, you must offer the presentation in such a manner as to promote public confidence in the judiciary’s impartiality and integrity and not suggest a predisposition on any particular matter. The Committee has recognized that it may benefit the public interest when an organization involved in litigating one side of an issue is exposed to the kind of broad perspective a judge can offer.
Thus, you may accept this invitation subject to the foregoing guidelines.
Enclosed, for your convenience, are Opinions 13-140; 13-116; 12-44 and 06-77 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)
Note: The term “implicit bias” is often used to describe the kinds of unconscious attitudes or stereotypes addressed in the training described here.