Opinion 12-149

October 25, 2012

Digest:         A trial judge may critique a trial attorney’s performance, subject to the Rules Governing Judicial Conduct, provided the judge offers the trial attorney’s adversary the same or similar learning opportunity.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.4(A)(1)-(3); Opinions 12-44; 08-49; 07-29; 05-12; 04-34; 04-15; 01-58 (Vol. XX); 95-121 (Vol. XIII); 92-83 (Vol. IX).

Opinion:

         The inquiring judge regularly presides in criminal court. The judge advises that occasionally an attorney who appears before him/her asks the judge to informally critique the attorney’s performance in misdemeanor and violation trials. The requesting attorneys are typically the most junior, inexperienced prosecutors and defense attorneys, whose supervisors may encourage them to make such requests of presiding judges. The judge asks whether he/she may grant such requests after a trial is completed (including the sentencing stage, if applicable).

         A judge must always uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1); avoid even the appearance of impropriety (see 22 NYCRR 100.2); and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not cast doubt on his/her capacity to act impartially; do not detract from the dignity of judicial office; and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

         The Committee has previously advised that a judge should not teach a seminar, continuing legal education class or similar program, where the audience comprises attorneys or others who represent or are otherwise associated with “one-side” of an issue that is litigated in the judge’s court, if doing so will create an appearance of impropriety (see 22 NYCRR 100.2) or cause the judge’s impartiality to reasonably be questioned (see 22 NYCRR 100.4[A][1]). For example, a judge should not preside at and offer a critique of a mock trial to be held during a trial skills training program for prosecutors only (see Opinion 12-44); teach cross-examination techniques only to defense attorneys (see Opinion 08-49); provide guidance to the local police department regarding the sufficiency of their accusatory instruments and other forms they routinely draft and present to the court (see Opinion 07-29); provide instruction in legal writing and advocacy skills only to one law firm’s associates as part of that firm’s continuing legal education program (see Opinion 01-58 [Vol. XX]); participate in law enforcement or prosecution-oriented presentations (see Opinion 04-34); and give a seminar to police officers who act as prosecutors in certain traffic cases (see Opinion 95-121 [Vol. XIII]).

         However, a judge may teach a seminar, continuing legal education class or similar program that is sponsored by a bar association or civic organization and open to a diverse or “general” audience (see Opinions 05-12 [judge may lecture during a continuing legal education program which is sponsored by a not-for-profit corporation and is open to all members of the bar]; 04-15 [a judge may be an uncompensated speaker or panelist at legal education programs co-sponsored by bar associations, not-for-profit corporations, law firms, or for-profit corporations]; 92-83 [Vol. IX] [judge may lecture about trial techniques for bar and civic associations ]).

         Therefore, the inquiring judge may, upon request, critique a trial attorney’s performance but only if the judge offers to do the same for the attorney’s trial opponent and as long as the judge does not offer tactical advice to either side as to how to win cases or defeat his/her adversary. And, to avoid any possible appearance of impropriety (see 22 NYCRR 100.2) or any possible perception that his/her role as mentor might affect his/her judicial judgment (see 22 NYCRR 100.2[B]), the judge must wait until after the criminal trial is concluded and, if the trial results in the defendant’s conviction, only after the defendant is sentenced.