Opinion 25-98

June 26, 2025

Digest:  An appellate judge who teaches at a law school may participate in deciding an application for amicus curiae status independently filed by another faculty member, even though the application lists the school for identification purposes, provided the judge had no involvement in the application.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4(G); Opinions 24-194; 23-44; 22-91; 15-23; 07-158; 04-42.

Opinion:

          The inquiring appellate judges are also adjunct faculty members at a law school.  Other professors at the law school sometimes move for permission to file an amicus brief before the court(s) on which the inquiring judges sit.  Each judge asks if they may participate in deciding another professor’s application to participate as amicus curiae, where the proposed amicus brief names the professor’s law school employment for identification purposes, but the professor is “not seeking to file the brief on behalf of the law school or a clinic or other entity operated by the law school itself.” 

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  Thus, a judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or where required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]).  In analyzing a judge’s disqualification obligations, the same principles apply whether the attorneys would appear on behalf of amicus curiae or on behalf of the parties to a case (see Opinions 23-44; 04-42).

          We have not previously required a judge who teaches at a law school to disqualify merely because a litigant’s attorney also teaches at the same law school.  Indeed, to the contrary, in Opinion 15-23, we said a full-time judge who is an adjunct professor at a law school, and has no role in a pro bono clinical program organized as a separate legal entity from the law school, may still appoint the clinic and its qualified participants to fiduciary positions, and may award appropriate fees as the applicable rules and law permit.  

          Nor does the fact that the amicus application names the law school where the inquirers teach for identification—without more—trigger any ethical concerns.  Again, the question here involves an amicus application which is not being filed on behalf of the law school, or any clinic or other entity operated by the law school.

          Of course, sometimes specific factual connections in a particular case may warrant disqualification or disclosure, as when (for example) the matter involves the educational institution that employs the judge or an individual who is co-teaching a course with the judge.  In Opinion 07-158, a part-time judge who was also a full-time law school professor selected local attorneys to assist the judge in teaching a trial advocacy course.  In that instance, we said the judge “should disclose that relationship when any such attorney appears in the judge’s court” (id.).  In Opinion 24-194, we concluded a full-time judge may not preside in a case pertaining to the legality of a particular statutory scheme, where the judge (1) is an adjunct faculty member at an educational institution that is involved in that statutory scheme and (2) is co-teaching a course at such institution together with a principal or officer of a litigant in the case.  

          Here, the inquiry excludes such factual connections.  Given that the inquiring judges are not permitted to practice law and must avoid impermissible ex parte communications, we also assume they would decline any invitation from their faculty colleagues to consult on a proposed amicus curiae application (see generally Opinion 22-91; 22 NYCRR 100.3[B][6]; 100.4[G]). 

          Accordingly, we conclude the judges may participate in deciding applications for amicus curiae status independently filed by other faculty members of the same law school, even though the application lists the institution for identification purposes, provided that the judges had no involvement in the application.