March 14, 2019
Digest: A full-time judge (1) may not provide individualized assistance and guidance to his/her fellow congregants in completing their health care directives but may give a general lecture on the subject; and (2) may not volunteer as an escort for individuals unknown to the judge who are visiting an abortion clinic in the presence of pro-life protesters.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(B); 100.4(G); Opinions 18-120; 18-78; 18-60; 17-148; 17-70; 17-28; 09-70; 05-140.
A full-time judge asks if he/she may participate in two extra-judicial activities as a volunteer. One, organized by the judge’s house of worship, would involve providing individualized assistance to other members in preparing their healthcare directives. The other, organized by a not-for-profit abortion clinic, would involve escorting patients safely to the entrance amidst pro-life protesters.
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 applicable limitations (see 22 NYCRR 100.4[B]). Because a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), any extra-judicial activities must not be incompatible with judicial office (see 22 NYCRR 100.4[A]). Indeed, a judge’s extra-judicial activities must 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 proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A full-time judge is prohibited from practicing law, with limited exceptions inapplicable here (see 22 NYCRR 100.4[G] [“a judge may act pro se and may, without compensation, give legal advice to a member of the judge’s family”]).
1. Assisting with Health-Care Directives
The judge’s house of worship is training some members as facilitators to meet one-on-one with other members to help them prepare healthcare directives. Facilitators are expected to provide individualized assistance and guidance to others as they are completing their individual health care directives and to “encourage” their friends in the congregation to fill out healthcare directives.
In Opinion 17-148, we said a full-time judge may not offer free legal advice to union members at a union-sponsored event but may lecture non-lawyer union members on general legal topics at the event.
Here, too, the inquiring full-time judge may not provide individualized assistance and guidance to his/her fellow congregants in completing healthcare directives, as doing so would, at the very least, create the appearance that the judge was impermissibly providing legal advice (see Opinions 17-148; 18-120 [noting “the practice of law is not confined to appearances in court,” but includes “behind-the scenes advice and assistance”]; 22 NYCRR 100.4[G]).
The judge may, however, address a group of congregants concerning the general content of health care directives and their legal value, subject to generally applicable judicial speech limitations (see Opinion 17-148; 22 NYCRR 100.4[B]).
2. Volunteering as Patient Escort
The judge also asks if he/she may escort patients to the entrance of an abortion clinic in the presence of pro-life protesters “to ensure that those seeking abortion care services are able to access the clinic with as little interference as possible.” Among other duties, volunteer escorts are expected to observe and document incidents involving the protesters. Where such incidents may rise to the level of actionable “harassment, intimidation, obstruction, or interfering with the clinic’s operation,” the escorts are expected to cooperate with law enforcement as needed.
A judge must not insert him/herself unnecessarily into the center of matters of substantial, local controversy and must comply with all limitations on judicial speech, including public comment (see Opinion 18-78). Abortion remains a matter of great public controversy, which may well come before the judge in his/her official capacity (see e.g. Opinion 17-28). As described, the abortion patient escort role would unnecessarily and deliberately insert the judge directly into the center of controversy, i.e. face-to-face confrontations between pro-life and pro-choice individuals at the moment of exercising that choice and is, thus, impermissible (see Opinion 09-70; see also Opinion 17-70 [extremely prolonged and controversial political situation]). Moreover, the abortion clinic’s manual in this inquiry tells escorts to “[n]ote and document … any incidents” involving protesters and provides guidance on when such incidents may be actionable. Thus, a judge’s participation in this volunteer activity could also very predictably result in his/her becoming a witness in high-profile matters of great public controversy (cf. Opinion 05-140). Accordingly, we conclude the judge may not volunteer as an escort to accompany patients to an abortion clinic past pro-life protesters.
We emphasize that the present opinion does not preclude a judge from accompanying a family member or friend to any medical appointment, whether or not the procedure to be undergone is the subject of public controversy. In other words, where pre-existing bonds of friendship or consanguinity with a particular individual clearly motivate the judge, we believe such conduct “will not insert him/her unnecessarily into the center of public controversy or otherwise compromise public confidence in his/her impartiality” (cf. Opinion 18-60).