Opinion 26-52

March 26, 2026

Digest:  A part-time judge may assist judges in another state to create a behavioral health treatment court in that state, subject to generally applicable limitations on judicial speech and conduct.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(11); 100.4(A)(1)-(3); 100.4(C)(3); Opinions 20-147; 19-115; 19-32; 11-138; 97-56.  

Opinion:

          The inquiring part-time judge is also the executive director of a not-for-profit organization.  In that capacity, the judge facilitated a specialized mapping of a particular county “to identify high utilizers of services such as social, mental health and criminal justice services, determine their service needs and gaps, and make recommendations on how best to address the identified gaps.”  As a result of this work, the judge was asked by another state’s judiciary to “help facilitate the creation of the state’s first behavioral health treatment court as a pilot program.”  The judge would “assist stakeholders in identifying high utilizers of behavioral health, social and criminal justice services, and help organize community and court resources to meet the needs of this population as part of the proposed behavioral health treatment court.”  The judge asks if it is ethically permissible to assist the other state’s judiciary in facilitating the pilot program.  The judge would undertake this work in his/her capacity as executive director of the not-for-profit.

          A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in judicial integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge may engage in extra-judicial activities that are compatible with judicial office and 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][1]-[3]).  In addition, a judge may serve as a non-legal advisor to an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice, subject to limitations not relevant here (see 22 NYCRR 100.4[C][3]). 

          Working to improve the law, the legal system and the administration of justice is a “well-recognized” area of permissible extra-judicial activity (Opinion 97-56).  For example, we said a judge may participate in an exploratory committee formed by the Public Defender and the District Attorney to consider the possible creation of a district court system in the judge’s county (see Opinion 20-147).  Likewise, a part-time judge who is also a full-time college professor may participate in an academic research project analyzing data from the local centralized arraignment part’s first year of operation, and accept compensation from the college for this work pursuant to a grant administered by the office of court administration (see Opinion 19-32).  We have also said that a judge may participate in an interview for a graduate student’s dissertation research and answer questions about the judge’s judicial experience with court-ordered treatment (see Opinion 11-138).  Notably, the research questions invited the judge to share his/her experience on issues such as “(1) What justifies court ordered [treatment] for [a particular category of individuals]? (2) How should society resolve the competing interests at stake? (3) How do courts decide [such] cases [involving decisions on court-ordered treatment]? (4) What questions or concerns weigh on the minds of judges when they decide these cases? and (5) How do judges resolve these issues?” (id.). 

          We see no reason for a different result here.  Thus, we conclude this judge may assist judges in another state to create a behavioral health treatment court in that state, provided the judge adheres to generally applicable limitations on judicial speech and conduct.  For example, the judge must abide by the public comment rule (see 22 NYCRR 100.3[B][8]), must not disclose non-public information acquired in a judicial capacity for purposes unrelated to official judicial duties (see 22 NYCRR 100.3[B][11]), and must not express a predisposition to decide matters a certain way (see e.g. Opinions 19-115; 11-138).