Opinion 16-151
December 8, 2016
Digest: (1) A judge may establish a judicial mentoring program to help promote diversity in the judiciary, which will pair sitting or retired judges with attorneys who wish to seek judicial office. (2) A mentor judge may review and comment on an attorney mentee’s application to a judicial screening panel, and may share his/her own experience in going through the elective or appointive process to become a judge, but may not contact political party leaders or others on the mentee’s behalf. (3) The mentor judge must exercise particular caution to avoid any perception of involvement in impermissible political activity both before and after the mentee publicly declares his/her candidacy for election to judicial office. Therefore, the mentor judge must not advise his/her mentee on campaign strategy, campaign literature or other outreach to voters or political leaders. (4) A fully retired judge, who is not designated as a judicial hearing officer or otherwise performing judicial functions with the court system, is not subject to these limitations.
Rules: 22 NYCRR 100.0(A), (Q); 100.2; 100.2(A); 100.2(C); 100.4(A)(1); 100.4(B); 100.5(A)(1); 100.5(A)(1)(ii), (iii); 100.5(A)(1)(c)-(e), (g); 100.5(A)(2)-(7); 100.6(A); Opinions 16-124; 16-47; 16-34; 15-133; 15-120; 14-93; 14-85; 12-149; 12-144; 09-151; 07-170; 05-140; 05-101.
Opinion:
A judge asks whether the court system may implement, and judges participate in, a judicial mentoring program meant to provide “guidance, support and encouragement” to attorneys who are interested in judicial positions by pairing them with judges who have gone through the same process. Each volunteer judicial mentor would “meet with his/her mentee, review the mentee’s application, and prepare the mentee for the interviewing process by mooting the mentee.” A significant program goal, as the Committee understands it, is to increase diversity in the judiciary.
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 generally speak, write, lecture, teach and participate in extra-judicial activities, subject to all applicable limitations in the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). For example, a judge must conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A sitting judge must not “directly or indirectly engage in any political activity,” unless an exception applies (22 NYCRR 100.5[A][1]). Prohibited political activity expressly includes “engaging in any partisan political activity” (22 NYCRR 100.5[A][1][c]); “participating in any political campaign for any office” (22 NYCRR 100.5[A][1][d]); “publicly endorsing” a candidate for public office (22 NYCRR 100.5[A][1][e]); and “attending political gatherings” (22 NYCRR 100.5[A][1][g]).1
Much of the proposed volunteer mentoring program is generally permissible for a sitting judge. Clearly, a judge may discuss his/her own experience and career path in a variety of contexts. For instance, the Committee has advised that a judge may assist in his/her college alma mater’s student recruitment efforts by sharing “his/her memories of the college and its impact on his/her career” (Opinion 14-93); and may give a lecture concerning his/her personal experiences in becoming a jurist, including his/her experience in being the first judge of a particular gender and ethnicity in a particular judicial district (see Opinion 15-133). Indeed, judges at every level of the state and federal judiciary - including some members of this Committee - regularly speak at bar association programs on the topic of how to become a judge, drawing on their own experiences.2
A judge also may, in appropriate circumstances, serve as a mentor. For example, a judge may mentor a high school student through a not-for-profit mentorship program (see Opinion 16-124); participate as a panelist and mentor in a philanthropic, non-commercial luncheon for young minorities (see Opinion 16-34); and mentor formerly-incarcerated individuals returning to society, where the mentees are unlikely to appear before the judge and other conditions are met (see Opinion 05-140). The Committee has also advised that a trial judge may critique a trial attorney’s performance, provided the judge offers the attorney’s adversary the same or similar learning opportunity (see Opinion 12-149). In so doing, of course, the judge must “not offer tactical advice to either side as to how to win cases or defeat his/her adversary” (id.). Moreover, to avoid “any possible perception that his/her role as mentor might affect his/her judicial judgment,” the judge must wait until the trial, and any associated sentencing, is concluded (id.).
To the extent the program is intended to encourage qualified attorneys from historically under-represented demographics to apply for judgeships, it might even help improve the administration of justice and promote public confidence in the judiciary. The Committee has advised that a judge who is president of an ethnic judges’ association may join with officers of an ethnic bar association to meet with law school deans and various executive and legislative branch officials to express their concern about the downward trend in minority representation within the legal profession and to advocate for increased diversity within the legal profession (Opinion 07-170). In so doing, the judge must not lend the prestige of judicial office to advance private interests and “should not participate if the proposed activity becomes politically partisan in nature” (id.; 22 NYCRR 100.2[C]; 100.5[A][1][c]). A judge also may participate in a job fair as a representative of a not-for-profit organization in order to encourage members of the lesbian, gay, bisexual and transgender community to take an upcoming exam for the position of court officer and to provide information about the test (Opinion 09-151). The Committee noted, approvingly, that the judge’s proposed activity “is specifically designed to encourage certain members of the community to actively pursue careers involving the administration of justice and, as a result, promote diversity in the court system” (id.).
Thus, the key question here is not whether a sitting judge may volunteer as a judicial mentor for an attorney who is applying to become a judge, but how to do so in a manner that will avoid both the appearance, and the reality, that the judge is (a) lending the prestige of judicial office to advance private interests and/or (b) directly or indirectly involved in a political campaign or other impermissible political activity.
Reviewing Screening Panel Application and “Mooting” the Applicant
A mentor judge may review and comment on his/her mentee’s application to be reviewed by a judicial screening panel, where this application is, in essence, a compilation of the applicant’s qualifications and references. The Committee notes that the application packet, once created, is typically provided (with relatively minor modifications) to multiple screening panels, including those of political parties, bar associations, appointing authorities, and an Independent Judicial Election Qualifications Commission. A sitting judge’s feedback on the applicant’s overall strengths and weaknesses, and what to emphasize or explain in the packet, is a significant and permissible aspect of such mentoring.
The judge may also meet with his/her mentee to help him/her practice answering questions he/she may encounter during a typical screening panel. In doing this, of course, the judge should not suggest or imply that the judge is acting on behalf of a political party.3
In this area, the Committee sees no reason to distinguish between applicants who will appear before a political party’s screening panel rather than a non-partisan screening panel.
However, to avoid the appearance that the judge is lending the prestige of judicial office to a particular applicant, the judge also must not make connections for his/her mentee behind-the-scenes by contacting political leaders or others on his/her behalf (see 22 NYCRR 100.2[C]; 100.5[A][1][c]-[d]).
Special Considerations When Mentoring an Applicant for Elective Judicial Office
A judge must be very careful to avoid “a public perception of entanglement of the judiciary itself in the political process” (Opinion 05-101). The Committee has advised, for example, that sitting judges may not be involved in a bar association’s “ranking or evaluation of candidates for elective judicial office” (Opinion 16-47 [citing prior opinions]), and may not comment on a district leader’s proposed system for rating judicial candidates (see Opinion 12-144). A judge also may not participate in an advertising campaign intended to lobby political support and funding for union contract renewals for his/her alma mater, even where the judge would only “describe his/her career and the impact certain professors and the institution had on his/her life” (Opinion 15-120).
When a judge is responding to questions from individuals who are considering hiring the judge’s former campaign manager, the judge “may state facts concerning his/her own personal experience with the campaign manager, including the judge’s personal knowledge of the campaign manager’s abilities and the judge’s level of satisfaction with the professional services rendered” (Opinion 14-85). However, the judge must not make a recommendation about hiring the campaign manager and “must not provide campaign advice” (id.). This caution is necessary to avoid “any perception of impermissible political activity” (id.).
Similarly, the Committee concludes a sitting judge may discuss his/her own experience with the electoral process one-on-one with an individual who is seeking elective judicial office, provided he/she does not provide any campaign advice.
A sitting judge must not, however, review and comment on proposed campaign literature or campaign advertisements, campaign slogans, or other matters of campaign strategy and outreach to voters. This would create an appearance that the judge is impermissibly involved in the individual’s judicial campaign or engaging indirectly in partisan political activity on the individual’s behalf (see 22 NYCRR 100.5[A][1][c]-[d]).
Finally, a judge should bear in mind that, under the Rules, a “candidate” is “a person seeking selection for or retention in public office by election” (22 NYCRR 100.0[A]), even if he/she has not received a political party’s nomination. Indeed, “[a] person becomes a candidate for public office as soon as he or she make a public announcement of candidacy, or authorizes solicitation or acceptance of funds” (id. [emphasis added]). Once the applicant becomes a “candidate” within the meaning of the rules, a judge should exercise great caution to avoid any appearance that he/she is “directly or indirectly” (22 NYCRR 100.5[A][1] “participating in any political campaign” (22 NYCRR 100.5[A][1][d]).
Retired Judges as Mentors
Finally, the Committee observes that there is no ethical impropriety in establishing a judicial mentoring program that matches fully retired judges with attorneys who are seeking judicial office. While both current and former judges may have extensive experience and wisdom to share with aspiring judges, a former judge generally has greater freedom of action than a sitting judge. Indeed, a fully retired judge who is not designated as a judicial hearing officer or otherwise performing judicial functions with the court system is not subject to the Rules Governing Judicial Conduct (see generally 22 NYCRR 100.6[A]).
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1 Of course, a judge may participate in his/her own campaign for elective judicial office during the applicable window period, subject to certain limitations (see generally 22 NYCRR 100.0[Q]; 100.5[A][1][c]; 100.5[A][2]-[7]); vote and identify him/herself as a member of a political party (22 NYCRR 100.5[A][1][ii]); and engage in some political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]).
2 In the Committee’s view, advice given at these programs, when judges share many details of their own personal experience and lessons learned with bar association members and/or the general public, does not raise any reasonable concerns about impermissible political activity by sitting judges. Just as a judge’s comments as a presenter at a Continuing Legal Education program cannot reasonably be seen as legal advice to any individual attendee, they likewise cannot reasonably be seen as political or campaign advice to any individual attendee.
3 Thus, for example, while a judge might include chambers staff in the “mooting” process, he/she should not invite district leaders or party officials to participate.