Opinion 18-18

January 24, 2018

Digest:         A judge may accompany students to the criminal trial of an individual who is charged with assaulting them, in his/her capacity as their official mentor, provided the judge (1) sits in the audience, (2) does not act as an attorney in the matter, (3) does not have any ex parte contact with the presiding judge, and (4) does not refer to or invoke his/her judicial status or otherwise lend the prestige of judicial office to the students.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.4(A)(1)-(3); Opinions 16-124; 13-113; 12-143; 10-197.

Opinion:

         This judge is an authorized mentor to two high school students. They have asked the judge to attend the criminal trial of a person who is charged with assaulting them. The trial is in another county, where the judge does not preside, and the judge would attend only in the capacity as the students’ official mentor to offer them support.¹ The judge would not “imply, mention or make obvious in any way” his/her judicial status.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2 [A]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) or engage in impermissible ex parte communications (see 22 NYCRR 100.3[B][6]). A judge’s extra-judicial activities must not be incompatible with judicial office, cast doubt on his/her 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][1]-[3]).

         In general, a judge may serve as a mentor to a high school student who has no involvement in any cases before the judge (see Opinion 16-124). Moreover, subject to certain limitations, judges may accompany a friend or relative to court proceedings in a court where they do not preside (see Opinions 13-113; 12-143; 10-197), although they must not “not draw attention to [their] presence or judicial status” (Opinion 13-113). Where, as here, the judge is not permitted to practice law, we more specifically advised (id.):

the judge must not (1) act as an attorney in the matter; (2) have any ex parte contact with the presiding judge; or (3) invoke his/her judicial office or otherwise lend the prestige of judicial office for [the friend or relative’s] benefit.

In sum, we have concluded that a “judge’s mere presence in court as an audience member, to observe proceedings in which a friend or relative is a party, would not give rise to an appearance of impropriety, and would not impermissibly lend the prestige of judicial office to advance the private interests of others” (id.).

         Therefore, we conclude this judge may attend the criminal proceedings involving his/her student mentees, in his/her capacity as their official mentor, subject to the same limitations.

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¹The inquiring judge is not permitted to practice law and, therefore, cannot attend as the students’ attorney.