Opinion 09-127

June 3-4, 2009

Please note that Opinion 05-134, which is cited herein as a "cf.", has been overruled (see Opinion 12-44 [advising that a judge may not preside at and offer a critique of a mock trial to be held during a trial skills training program for prosecutors]). The Committee notes that the advice contained in present Opinion is not affected by Opinion 12-44 and thus remains in effect.

Digest:         A law clerk or court attorney should not participate in a legal educational program for school students that is sponsored solely by a district attorney’s office, but may participate if defense attorneys also are involved in the program.

Rules:          22 NYCRR part 50; 100.2; 100.2(A); 100.3(B)(8); 100.3(C)(2); 100.4(A); 100.4(B); 100.5(C); Opinions 09-111(B); 06-73; 05-134; 04-34; 03-69; 00-108 (Vol. XIX); 97-17 (Vol. XV); Joint Opinion 00-54/00-56 (Vol. XIX).

Opinion:

         An administrative judge asks whether he/she may permit law clerks and court attorneys who work in courts within his/her jurisdiction to participate in a legal educational program at certain local schools. As described by the inquiring judge, this program was instituted by a district attorney’s office about 15 years ago. Participants in the program accompany an assistant district attorney into fifth grade classrooms twice a month to teach students about the law, using everyday scenarios and role-playing. The inquiring administrative judge is concerned about the propriety of permitting court employees who work in a criminal part to participate in the program, but asks whether he/she may work with the district attorney’s office “to expand the scope of the program to include other volunteers from the ranks of our law clerks and court attorneys whose judges do not have a criminal calendar.” The judge notes that no public resources would be used and participating court employees would charge appropriate leave time.

         A judge must avoid impropriety and the appearance of impropriety in all of 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 also must require court personnel subject to the judge’s direction or control to abstain from public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]) and to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]). Indeed, this Committee previously has advised that, because the position of law clerk is one of “particular trust and confidence,” a law clerk’s activities must be evaluated in light of the possible impact they may have on a judge’s obligation to maintain public confidence in the independence and impartiality of the judiciary (see Opinion 09-111[B]). Nevertheless, the limitations on the extrajudicial conduct of a judge do not automatically apply to the judge’s law clerk (see Opinions 00-108 [Vol. XIX]; 97-17 [Vol. XV]; cf. 22 NYCRR 100.5[C] [specifically imposing certain restrictions on personal appointees of a judge]) or to court attorneys who are not personal appointees of a judge.

         Under the Rules Governing Judicial Conduct, a judge may speak, write, lecture, teach and participate in extra-judicial activities, subject to certain limitations (see 22 NYCRR 100.4[A],[B]), and the Committee has recognized that a law clerk similarly may, as a general rule, speak, write and lecture on the law (see Opinion 03-69). However, the Committee has cautioned that judges should not participate in seminars or other extrajudicial events if they are so one-sided as to create an appearance that the judge’s neutrality may be compromised (see Opinion 04-34 [although judge may otherwise participate in summit on elder abuse, judge may not participate in law enforcement or prosecution oriented presentations]; Joint Opinion 00-54/00-56 [Vol. XIX] [judge may not participate with law enforcement agencies in a project to develop protocols relating to victims of domestic violence, where the project excludes legal representatives of defendants and is intended to aid in the prosecution of such matters]; cf. Opinions 06-73 [judge may participate in a networking criminal justice breakfast, even though it is sponsored by local law enforcement agencies, where the public defender’s office and the defense bar are invited]; 05-134 [judge may preside at and offer a critique of a mock trial training program for attorneys who represent battered women, if the judge determines that equal time will be given to both sides of the issues and the judge remains neutral]). Similar considerations may also apply with respect to activities of a law clerk. For example, the Committee has advised that a judge should not consent to his/her law clerk co-authoring articles with an attorney whose law firm litigates frequently before the judge in the area of law to be covered by the proposed articles (see Opinion 03-69).

         In the Committee’s view, participation by judges or court personnel in a legal education program designed and sponsored solely by the district attorney’s office could create the impression of improper alignment with prosecutorial interests (see Opinion 04-34; Joint Opinion 00-54/00-56 [Vol. XIX]). Moreover, without input from a defense counsel’s perspective, the “everyday scenarios” and role-playing used to teach students about the law may be perceived to reflect a pro-prosecution bias. Therefore, the Committee concludes that a court attorney or law clerk, and especially those who regularly handle criminal matters, should not participate in the program as currently offered.

         However, if representatives of the public defender’s office or the criminal defense bar are invited to participate in designing, presenting, and co-sponsoring the program, it is the Committee’s view that their participation would demonstrate that the program content is not intended to promote a prosecutorial perspective, but rather to educate schoolchildren concerning the criminal justice system as a whole (see Opinion 06-73). Therefore, a judge may permit court attorneys or law clerks to participate in this program if defense counsel are involved. However, the Committee notes that any court personnel involved in designing or presenting the program should ask that the role-playing scenarios not be based on actual pending or impending matters (see 22 NYCRR 100.3[B][8]).

         Law clerks and court attorneys who wish to volunteer in this program should contact the Unified Court System’s Office of Court Administration, the entity ultimately responsible for interpreting part 50 of the Chief Judge's Rules (22 NYCRR part 50), for further guidance on any issues that may arise under the Rules Governing Conduct of Nonjudicial Court Employees (contact: ETHICS HELPLINE: 1-888-28-ETHIC.)