Opinion 08-80

April 24, 2008

Digest:         A part-time lawyer judge who is permitted to practice law and occasionally appears as an attorney in a jury trial should not voluntarily reveal his/her judicial status to prospective jurors during a jury trial voir dire. The lawyer/judge may, however, notify the trial judge and opposing counsel, on the record , of his/her judicial status. The trial judge then can determine, in the context of the particular case, the best way to address the issue, taking into account both the lawyer/judge’s client’s interests and the Rules Governing Judicial Conduct.

Rules:          22 NYCRR Preamble; 100.2; 100.2(A); 100.2(C); Opinion 07-18; 06-145

Opinion

         A part-time lawyer judge who is permitted to practice law occasionally handles jury trials. The judge asks whether it is ethically permissible for him/her or the judge presiding in a jury trial to determine if any prospective juror harbors any ill will towards the part-time lawyer judge as the result of any experience the prospective juror may have had with the part-time lawyer judge in his/her court. It appears that the judge presides in a busy municipal court and therefore is not likely to recognize every litigant or other person who may have appeared in the judge’s court or attended the judge’s court sessions.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge, therefore, must not lend the prestige of judicial office to advance his/her private interests (see 22 NYCRR 100.2[C]).

         This Committee previously has advised that a Court Attorney Referee who is a litigant in another court is not required by the Rules Governing Judicial Conduct to disclose his/her judicial status to the Judicial Hearing Officer presiding in his/her case (see Opinion 07-18), and that a judge representing him/herself in an automobile warranty arbitration proceeding should not invoke or volunteer his/her judicial title during the proceeding (see 06-145). In the Committee’s view, a judge or Court Attorney Referee who does so may be perceived as lending the prestige of judicial office to advance his/her private interests (see 22 NYCRR 100.2[C]; Opinion 07-18; 06-145).

         In the present inquiry, however, the judge is not a litigant, but an advocate whose client’s interests could be affected by a prospective juror’s past experience with the lawyer/judge in his/her judicial capacity. Such a past experience itself has no relevance to a case in which the lawyer/judge is representing a client. However, to protect the client’s interest in his/her case while at the same time ensuring that the lawyer/judge avoids even the appearance of impropriety, it is the Committee’s view that the lawyer judge should not reveal his/her judicial status during jury trial voir dire, but should advise both the trial judge and opposing counsel, on the record, of his/her judicial status. The trial judge then can determine, in the context of the particular case, the best way to address the issue, taking into account both the lawyer/judge’s client’s interests and the Rules Governing Judicial Conduct (see 22 NYCRR Preamble [“The rules governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances”]).