Opinion 23-03
February 2, 2023
Digest: A judge who is an officer of a magistrates association may invite the prosecutors, defense counsel, probation and various law enforcement and county agencies to attend and speak at monthly magistrates association meetings where no pending or impending matters are discussed. Any portion of the meeting when magistrates association’s business is discussed or transacted should be private, outside the presence of such outside attorneys and agencies.
Rules: 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(6); 100.3(B)(8); Opinions 20-38; 18-41; 15-198; 15-99; 10-61; 87-28(a).
Opinion:
The inquiring judge, who is also an officer of a local magistrates association,1 asks if it is ethically permissible to invite the District Attorney, Public Defender, probation and various law enforcement and county agencies and a representative of the local district office to attend and speak at monthly magistrates association meetings. The judge envisions that no specific cases will be discussed, and offers to ensure that attorneys from the District Attorney’s office and the Public Defender’s office will only be allowed to attend together. Any portion of the meeting when magistrates association’s business is discussed or transacted will be private, outside the presence of prosecutors, defense counsel, law enforcement, and county agencies. The judge’s goal is to “create long term inter-agency relationships, share operational information, address current circumstances and provide our justices with the skills, training and knowledge necessary to preside fairly, efficiently and effectively.” According to the judge, the association’s by-laws specifically contemplate that non-voting “guests” (who do not pay dues or receive copies of the minutes) may include “members of various agencies such as attorneys [and] police officers.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not convey, or permit others to convey, an impression they are specially positioned to influence the judge (see 22 NYCRR 100.2[C]); and must be faithful to law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]). A judge must also uphold the judiciary’s independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]).
Although we have not previously considered the broad question of who may be invited to attend a magistrates association meeting and address the attendees, our prior opinions provide some starting points for analysis. We have advised that a judge may discuss pending or impending matters with other judges and court clerks at a magistrates association meeting, “assuming this is a confidential setting with no others present” (Opinion 20-38). We have also advised that a judge may attend a magistrates association meeting to be held in a secured part of a sheriff’s office in a local correctional facility, and permit the sheriff and staff to speak to the judges (see Opinion 15-198). As we explained (id. [citations omitted]):
In this context, the Committee sees no ethical impropriety with a magistrates’ association holding a meeting at a jail or other rule-applicable facility, as this will help facilitate compliance with the “jail visitation” requirements. The sheriff, deputy sheriffs and/or county correctional officers responsible for facility oversight will necessarily address the judges, lead the tour, describe what the judges are viewing, and answer questions posed by the visiting judges. ... To avoid any improper appearance, any portion of the meeting when necessary magistrates’ association business is discussed or transacted should be private, outside the presence of the sheriff, deputies, and correctional officers. It would be improper to invite only law enforcement interests, but not other entities, to the portion of the magistrates’ association meeting that focuses solely on association business, as it potentially has an appearance of “a special relationship with law enforcement.”
As for the planned informal gathering and discussion with the sheriff’s office, although physically separate from the jail tour, the Committee anticipates the sheriff and staff will discuss jail initiatives and other facts about the jail, just as they would on the jail tour. This is permissible. By contrast, it would be inappropriate for the sheriff, deputies or officers to engage in advocacy, i.e. to “attempt to promote a particular agenda in connection with the judge’s judicial decision-making,” or to permit ex parte discussions of pending or impending cases.
Conversely, we have advised that a magistrates association may not permit representatives from a town clerks’ association to attend their meeting for the purpose of discussing the enforcement of dog regulations to “ensure consistency between the various towns” (Opinion 10-61).
With respect to training by law enforcement, we have advised that, although a magistrates association may tour state police headquarters, they “should not observe law enforcement training on how to process a DWI arrest” while they are there (Opinion 15-99). Our concern was that “it would be difficult to avoid the public perception that a law enforcement agency was being allowed to educate the judiciary on the ‘proper way, to conduct such arrests,” even if prosecution and defense representatives were present (id.). We relied on Opinion 87-28(a), in which we noted that allowing the same officers to testify before judges they have tried “to instruct” could “severely undermine both the perception and reality of impartiality.”
We see no possible appearance of impropriety in inviting a representative of the local district office to attend and speak at monthly magistrates association meetings. This is ethically permissible.
With respect to people from outside the court system, such as the District Attorney, Public Defender, probation and various law enforcement and county agencies, we believe that it is permissible for them to be invited to attend monthly magistrates association meetings, provided care is taken to avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]). We note that the inquiring judge’s proposal to avoid discussing any pending or impending cases while those outsiders are present will also help judges comply with the public comment rule (see 22 NYCRR 100.3[B][8]). Provided that both sides are invited, it is not necessary to further monitor whether they attend and exclude one side from the meeting merely because the other side has left the room or did not choose to attend that particular meeting.
Attendees may also be invited to address the judges at the meeting, consistent with the principles set forth above and in prior opinions (cf. Opinion 18-41 Addendum [noting that “the Public Defender’s participation here will help ensure balance and minimize the risk that the program will be seen as a one-sided, law enforcement program”]).
Finally, to avoid any improper appearance, any portion of the meeting where necessary magistrates association business is discussed or transacted should be private, outside the presence of the prosecutors, defense counsel, probation officers, law enforcement or correctional officers, and others who are not judges or court personnel. To expand on our observation in Opinion 15-198, it would be improper to invite any one outside agency - but not others - to the portion of the magistrates association meeting that focuses solely on association business, as it could potentially convey an appearance of “a special relationship” with that agency.
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1 We have sometimes used an apostrophe when referring to a magistrates association. However, as it seems that most of these associations do not use an apostrophe in their name, we omit it here except when quoting a prior opinion.