Opinion 05-134

December 8, 2005

Please note that this Opinion has been overruled (see Opinion 12-44).

Digest:         A judge may preside at and offer a critique of a mock trial to be held during a trial skills training program for attorneys who represent battered women in custody proceedings if (1) the judge determines that equal time will be given to both sides of the issues addressed during the mock trial, (2) the judge remains neutral and provides an effective critique of all parties involved; and (3) the judge does not assume the role of mentor as to how to win such cases.

Rules:          22 NYCRR 100.2(A); 100.4(B); 100.4(B); Opinions 04-59; 03-67; 99-46 (Vol. XVII); 98-87 (Vol. XVII); 97-89 (Vol. XVI); 96-140 (Vol. XV); 96-44 (Vol. XIV); 95-121 (Vol. XIII); 94-74 (Vol. XII); 89-66 (Vol. III)

Opinion:

         A judge asks if it is ethically permissible to preside at and offer a critique of a mock trial to be held during a trial skills training program for attorneys who represent battered women in custody proceedings.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A). A judge may engage in such extra-judicial activities as lecturing and teaching if doing so does not cast reasonable doubt on the judge’s capacity to act impartially and is not incompatible with judicial office. 22 NYCRR 100.4(A), (B). In the past this Committee has concluded that a judge may preside at mock trials designed to teach school students and adult education students about the courts, the law, and the legal system. [Opinions 96-140 (Vol. XV);94-74 (Vol. XII); 89-66 (Vol. III)]. In the present inquiry, however, because the purpose of the training program is much more narrowly focused, i.e. to improve the skills of attorneys who represent only one side of a particular kind of case, it is less clear that the judge can participate and still comply with the Rules Governing Judicial Conduct.

         In applying these rules to similar extra-judicial activities, the Committee has concluded that a judge may participate in a panel discussion sponsored by the sheriff’s department as part of its training program for the purpose of explaining the procedures and operations of the court [Opinion 96-44 (Vol. XIV)], and may speak about the felony domestic violence part over which the judge presides at a conference about domestic violence [Opinion 98-87 (Vol. XVII)]. In both cases, however, the judge was cautioned to avoid commenting on pending or impending cases or manifesting a predisposition to decide such cases in a certain way.

         On the other hand, the Committee has concluded that a judge should not give a seminar to police officers who act as prosecutors in certain traffic cases on how to prosecute such cases successfully [Opinion 95-121 (Vol. XIII)]. Nor should a judge serve as commentator on a training video intended to advocate that a prisoner’s status as a “battered woman” is relevant to issues of parole eligibility [Opinion 97-89 (Vol. XVI); as a member of a domestic violence community coordinating council that engages in vigorous advocacy on behalf of domestic violence victims [Opinion 99-46 (Vol. XVII)]; on an advisory committee to a law school women’s justice center where the committee’s primary role is to address domestic violence issues exclusively from the standpoint of the victim (Opinion 03-67); and, the judge should not attend monthly meetings of a judges’ working group for a lawyers’ committee against domestic violence (Opinion 04-59). In each of these activities, the goal of the sponsor was to promote a point of view or to support one side in a particular class of cases. A judge’s participation in these activities, therefore, could reasonably cast doubt on his/her ability to remain impartial in those cases.

         The activity proposed by the judge in the present inquiry raises similar concerns. Based on its title, the training program is designed to help lawyers who represent battered women in custody cases to improve their trial skills. The judge would preside over a mock trial including opening statements and preliminary matters, expert witness testimony, direct and cross examination of witnesses, and closing statements. At the conclusion of the mock trial, the judge will critique the proceeding. Certainly the judge can discuss the law, but cannot teach the participants how to win cases. Assuming the judge determines that equal time will be given to both sides of the issues addressed during the mock trial, and that the judge can remain neutral and provide an effective critique of all parties involved, the judge’s participation is ethically permissible. The judge should not participate, however, if the judge determines that the training program will result in the perception that the judge is an advocate for battered women in custody cases.