Opinion 08-49

March 13, 2008

Digest:         A judge should not teach cross-examination techniques to attorneys newly employed by an institutional provider of indigent defense services which employs attorneys who regularly appear in the judge’s court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(B); Opinion 06-77; Joint Opinion 03-84/03-89; 95-121 (Vol. XIII).

Opinion:

         A judge asks whether he/she may teach cross-examination techniques to attorneys newly-employed by an institutional provider of indigent defense services. Attorneys employed by the defense services provider regularly appear in the judge’s court.

         A judge may speak, write, teach and lecture (see 22 NYCRR 100.4[B]), but must avoid impropriety and the appearance of impropriety in all his/her activities (see 22 NYCRR 100.2). In Joint Opinion 03-84/03-89, the Committee advised that judges may speak, lecture, and participate in educational programs, conferences, symposia, etc. on the law, the legal system and the administration of justice. The fact that the audience comprises lawyers who advocate on behalf of particular groups, e.g. tenants, or consumers, does not alone render such participation improper (see id.). A judge must not, however, be perceived as giving partisan advice on questions of strategy or teaching tactics as to how the lawyers are best likely to succeed (see Opinion 06-77; 95-121 Vol. [Vol. XIII]). To do so would create an appearance of impropriety and cast doubt on the judge’s ability to be impartial(see 22 NYCRR 100.2; Joint Opinion 03-84/03-89).

         The judge in the present inquiry, therefore, should not teach cross-examination techniques to attorneys who will appear regularly in the judge’s court, as to do so would, at best, create an appearance of impropriety (see 22 NYCRR 100.2) and, at worst, cast doubt on the judge’s ability to be impartial (see 100.2[A]).