Opinion 11-138

December 8, 2011

Digest:         A judge may participate in an interview with a graduate student in connection with the student’s dissertation research on a particular legal issue, and answer questions about the judge’s judicial experience with a form of court-ordered treatment, provided the judge does not comment on a pending or impending proceeding, does not disclose any non-public information acquired in a judicial capacity and does not express any predisposition to decide matters in a certain way.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(11); 100.4(B); Opinions 10-131; 10-115; Joint Opinion 09-192/09-231; Opinions 99-44 (Vol. XVII); 97-56 (Vol. XV).

Opinion:

         A judge asks whether he/she may participate in an interview with a graduate student in connection with the student’s dissertation research on a particular legal issue. (The judge notes that the student is also admitted to practice as an attorney.) The interview would be “anonymous,” meaning that the student “will not use [the judge’s] name in any ... discussions, lectures or writings based on [the] research.” According to the judge, the interview would involve the following questions about a kind of treatment that courts can order in certain cases:

“(1) What justifies court ordered [treatment] for [a particular category of individuals]? (2) How should society resolve the competing interests at stake? (3) How do courts decide [such] cases [involving decisions on court-ordered treatment]? (4) What questions or concerns weigh on the minds of judges when they decide these cases? and (5) How do judges resolve these issues?”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may “speak, write, lecture, teach and participate in extra-judicial activities” (22 NYCRR 100.4[B]), subject to the Rules Governing Judicial Conduct (see generally Joint Opinion 09-192/09-231 [providing an overview of rules applicable to extra-judicial activities]). For example, a judge must not make any 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]), nor disclose nor use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity (see 22 NYCRR 100.3[B][11]).

         The Committee has previously advised that a judge may, subject to certain limitations, serve as a consultant to an academic research project on jurors’ memories (see Opinion 10-115); respond to a research survey and participate in a follow-up interview on changes in the judge’s court (see Opinion 10-131); and participate in a two-day meeting of a non-profit foundation’s research program on adolescent development and juvenile justice and discuss “the judge’s work in the area of juvenile justice and its implication for research, practice and policy” (Opinion 97-56 [Vol. XV]).

         For similar reasons, the Committee concludes that the inquiring judge may participate in the described academic research interview, provided the judge does not comment on any pending or impending matter in the United States or its territories (see 22 NYCRR 100.3[B][8]; Opinions 10-131; 97-56 [Vol. XV]); nor disclose non-public information acquired in a judicial capacity for purposes unrelated to official judicial duties (see 22 NYCRR 100.3[B][11]; Opinion 10-131; 99-44 [Vol. XVII]); nor express predispositions to decide matters a certain way (see Opinions 10-131; 99-44 [Vol. XVII] [judge should not respond to survey questions calling “for expressions of views which might be perceived to signify a predisposition to decide matters in a certain way”]; see generally 22 NYCRR 100.2[A]).