June 18, 2020
Digest: A full-time judge who formerly served as an assistant corporation counsel may participate in a panel discussion on legal careers for the law department’s summer interns.
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 19-100; 17-163/18-03/18-21; 17-12; 15-133; 12-44; 11-83; 11-75.
A full-time judge who formerly served as an assistant corporation counsel asks if he/she may participate in a panel discussion for the law department’s summer interns.1 The panel would consist of several former employees who have gone on to other public sector roles, and would address topics such as “your current role, including addressing the needs of the [public] during the Covid-19 pandemic, what you did at the [agency], what helped you get where you are now, and advice you would give to someone just starting out in their careers.” The judge says law department attorneys may “occasionally appear before me” on “small claims matters.”
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 which 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 comment on 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 NYCRR 100.3[B][a]-[b]).
Here, the proposed topics are generally permissible (see e.g. Opinions 19-100 [judge may speak about his/her judicial experience at a legislator’s non-partisan, non-political youth meeting]; 17-12 [judge may speak to religious organizations about his/her background and experience, encouraging pursuit of a legal career]; 17-163/18-03/18-21 [judge may be interviewed about his/her educational background, professional experience and community service]; 15-133 [judge may speak at a foreign consulate about his/her personal experiences in becoming a jurist]).
That the audience will be limited to summer interns at the city’s law department and will not include any other groups does not necessarily bar the judge’s participation (see Opinion 12-44). Indeed, we have said “there is nothing inherently unethical about providing legal instruction to the attorneys in the New York City Corporation Counsel’s office, outside of the trial advocacy context, in a manner that does not create a perception that the judge is providing partisan advice on litigation strategy or tactics” (id. fn 3). We have recognized it may “benefit the public interest when an organization that is involved in litigating only one side of an issue is exposed to the type of broad and nuanced perspective that a judge can offer” (id.). As we explained, the core concern is (id. [citations omitted]):
a judge must take particular care that his/her topic will not compromise the judge’s apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way.
As a result, in such situations, a judge must exercise caution to avoid the perception the judge is advising on litigation strategy or tactics (see id. [noting “it would be difficult, if not impossible” for a judge to comply with this requirement when presiding at and critiquing a mock trial]; Opinion 11-83).
The judge is unlikely to run afoul of this prohibition in the proposed panel discussion on legal careers, particularly if he/she adheres to the proposed topics concerning his/her own career path and general career advice suitable for summer interns. We thus conclude the judge may participate on the panel, subject to the limitations above and other generally applicable limitations on judicial speech and conduct.
1 The situation is unlike Opinion 11-75, where a judge was considering inviting only the prosecutor’s interns to participate in the court’s internship program.