Opinion 09-92

June 3 - 4, 2009

Digest:         A full-time judge may not present an in-house CLE program for lawyers and paralegals employed by his/her former law firm. However, a full-time judge may present a CLE program that his/her former law firm co-sponsors with the County Bar Association and that would be open to all members of the local bar.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4 (B); 100.4(H)(1); Opinions 05-12; 04-111; 04-15; 01-58 (Vol. XX).

Opinion:

         Prior to becoming a full-time judge, the inquirer worked for a law firm where he/she served as the legal research coordinator. Several years ago he/she presented an in-house CLE program for the firm’s lawyers and paralegals about research tools on the world wide web. Before his/her election to judicial office, the firm asked the inquirer to update the program and again present it to the firm’s lawyers and paralegals. The inquirer advises that the firm did not schedule the program before he/she took office, but would still like him/her to present it. The inquirer asks whether he/she may do so.

         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 may engage in extra-judicial activities, including speaking, writing, lecturing and teaching, as long as doing so does not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3], [B]).

         The Committee previously has advised that a judge should not teach legal writing and advocacy skills exclusively to one law firm’s associates as part of that law firm’s CLE program (see Opinion 01-58; see also Opinion 04-111).

         As a general rule, judges may teach, write and speak on matters concerning the law, the legal system, and the administration of justice (see 22 NYCRR 100.4[B]) and may, in certain circumstances not present here, receive compensation (see 22 NYCRR 100.4[H][1]). However, this Committee has previously advised that a judge should not teach a CLE program for a law firm’s associates (see Opinion 01-58; see also Opinion 04-111). Specifically, the Committee concluded that (Opinion 01-58):

Engaging in such a practice would associate the judge with the competence of a private law firm and would serve the exclusive interests of that firm (see 22 NYCRR 100.2[C]), rather than the common professional interests of a heterogeneous, unconnected group of lawyers, who, in a different setting, under different auspices, might be the beneficiaries of a judge's lecture on legal practice, e.g., at a bar association program. Entering into an arrangement where the judge is providing the benefit of his or her judicial knowledge, expertise and experience to the lawyers of a particular firm and that firm alone is, in our opinion, an extra-judicial activity which is incompatible with judicial office and thus prohibited under section 100.4(A)(3) of the Rules Governing Judicial Conduct.

         The inquirer is aware of the Committee’s Opinion 01-58, but argues that in his/her case, the private firm would not be gaining the benefit of his/her “judicial knowledge, expertise, and experience,” but that he/she would be imparting knowledge acquired while he/she worked at the firm as a member of the firm’s litigation practice.

         Nevertheless, in the Committee’s view, participation in the proposed program could create an appearance of impropriety and cast reasonable doubt on the judge’s ability to be impartial (see 22 NYCRR 100.2; 100.4[A][1]). Therefore, the inquiring judge may not present an updated in-house CLE program for his/her former law firm’s lawyers and paralegals about research tools on the world wide web.

         However, as an alternative, the inquiring judge proposes participating in a program that his/her former law firm would co-sponsor with the County Bar Association and that would be open to all members of the local bar. The Committee previously has advised that it is ethically permissible for a judge to participate in such a program (see Opinion 05-12; 04-15), unless at the time the program will take place, the judge is presiding in a contested, adversarial proceeding in which a program co-sponsor is a party (see Opinion 04-15). In addition, during his/her presentation, the inquiring judge must not comment on any pending or impending proceeding (see 22 NYCRR 100.3[B][8]).