Opinion 07-15

January 25, 2007

Digest:         Subject to certain conditions, trial and appellate court judges may host “brown bag luncheons” to discuss issues of law and practice with members of the bar, and may include attorneys employed by organizations with cases regularly pending before the courts.

Rules            22 NYCRR 100.1; 100.2(A); 100.3(B)(6); 100.3(B)(8); Opinions 06-126; 06-77; cf. Opinion 92-22 (Vol. IX).

Opinion:

         A judge asks for clarification regarding guidelines set forth in Opinion 06-126. This opinion states: 

                                                 Judges of an appellate court may participate in a

                                                 “brown bag” lunch series with members of a local

                                                 bar association, to discuss general issues of law

                                                 and appellate practice, as long as pending or

                                                 impending cases are not discussed and attorneys

                                                 who have matters pending before that court are

                                                 not present.

         The inquiring judge asks whether trial court judges may also follow the guidelines articulated in Opinion 06-126 and seeks advice about the propriety of having “institutional” attorneys (i.e., District Attorneys, Legal Aid, Public Defenders, Corporation Counsel, etc.) at these luncheons, given that their offices “almost always” have cases pending before the courts.

         Although Opinion 06-126 does not specifically address whether it is proper to include “institutional” attorneys in these meetings, we can see no reason why such attorneys, who are also members of the local bar association or part of the invited group, should be treated differently from other attorneys. It is thus the Committee’s opinion that trial and appellate judges may host “brown bag luncheons” which are open to all members of the bar, including “institutional” attorneys.

         Regarding the exclusion of attorneys with pending matters, the Committee notes that the inquirer in 06-126 specifically stated that the organizers of these luncheons planned to exclude such attorneys. Upon further reflection, we find clarification desirable. As the judge in the present inquiry notes, it is likely that the District Attorney’s office or the Legal Aid Society will always have cases pending in both appellate and trial courts. That fact alone should not require the exclusion of all attorneys employed by these organizations. If, however, a particular case has been scheduled for appellate argument, or if a case is currently before the judge ( not merely on the judge’s docket, but, rather, e.g., in the midst of an ongoing trial or an evidentiary hearing ), the attorneys directly and actively involved in such proceedings should not attend. To the extent this alters Opinion 06-126, that opinion is deemed modified.

         The judges responsible for these educational events should make the above-stated guidelines available to attendees by any practical written or verbal means, but the judges do not have an affirmative ethical obligation to ensure compliance or to remove or exclude non-complying attorneys in attendance.

         The Committee also cautions that participating judges should not comment on any pending or impending proceeding in any court in the United States, nor should they allow any ex parte communications with participating lawyers concerning any matter pending before the court. Judges should also take steps to avoid the perception that they are providing partisan advice about strategy or tactics. 22 NYCRR 100.1; 100.2(A); 100.3(B)(6); 100.3(B)(8); Opinions 06-126; 06-77.