Opinion 13-140

October 24, 2013

Digest:         A judge may address a civilian complaint review board on the law of search and seizure and arrest procedures, subject to certain limitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(8); 100.3(B)(9)(a)-(b); 100.4(A)(1)-(3); 100.4(B); Joint Opinions 13-09/13-52; 03-84/03-89; Opinions 13-06; 12-44; 11-83; 09-208; 09-62; 07-97; 06-77; 06-15; 98-73 (Vol. XVII); 96-44 (Vol. XIV); 95-121 (Vol. XIII); 93-82 (Vol. XI); 91-104 (Vol. VIII); 91-75 (Vol. VII).

Opinion:

         The inquiring judge has been invited to speak before a civilian complaint review board. The judge advises that the board is an independent entity that investigates and recommends action upon complaints by members of the public against police officers. The inquiring judge has been asked to address the agency on the law of search and seizure, arrests, police-citizen encounters, and related matters.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s extra-judicial activities must not be incompatible with judicial office, and must 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 (see 22 NYCRR 100.4[A][1]-[3]). Subject to these and other limitations, a judge may speak, write, lecture, teach and participate in extra-judicial activities (see 22 NYCRR 100.4[B]). For example, a judge must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B][1]), must not comment on any pending or impending cases within the United States or its territories (see 22 NYCRR 100.3[B][8]), and must not make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office (see 22 NYCRR 100.3[B][9][a]-[b]).

         The Committee has repeatedly advised that a judge may lecture and teach on matters relating to the law and the administration of justice. For example, a judge may teach a Vehicle and Traffic Law class to aspiring police officers at a local community college (see Opinion 98-73 [Vol. XVII]); participate in a panel discussion sponsored by a sheriff’s department as part of its training, for the purpose of explaining the procedures and operations of the court (see Opinion 96-44 [Vol. XIV]); lecture school bus drivers on vehicle and traffic law (see Opinion 91-104 [Vol. VIII]); and serve as advisor to a bar association legal continuing education program (see Opinion 91-75 [Vol. VII]).

         Although the audience for the judge’s lecture will be limited to members and staff of the civilian complaint review board and will not include members of any other interest groups, such as law enforcement agencies or civil rights organizations, this alone does not necessarily bar the judge’s participation (see Opinion 12-44). Indeed, the Committee has recognized that it may “benefit the public interest when an organization that is involved in litigating only one side of an issue is exposed to the kind of broad and nuanced perspective that a judge can offer” (id.). For example, the Committee has advised that where a judge’s intended audience consists solely of law enforcement personnel, that fact does not, in and of itself, render a speaking engagement ethically impermissible (see Opinions 09-208 [members of a local sheriff’s association]; 09-62 [members of a law enforcement agency]; 98-73 [Vol. XVII] [aspiring police officers]). Outside the law enforcement context, the Committee has advised that, subject to certain limitations, a judge may give a seminar on appellate practice to staff attorneys of a public authority (see Opinion 06-77); and may lecture to audiences consisting solely of prosecutors (see Opinion 11-83); lawyers, staff and interns of a New York State agency (see Opinion 07-97); or real estate managers (see Opinion 93-82 [Vol. XI]).

         When the audience is not a “general” or “balanced” audience, but consists of only one “side”, a judge must take particular care that his/her topic and remarks will not compromise the judge’s apparent or actual impartiality (see Opinion 12-44; Joint Opinion 03-84/03-89) and do not manifest a predisposition to decide a particular type or class of case in a certain way (see 22 NYCRR 100.2[A]; 100.3[B][9][a]-[b]; Opinions 12-44; 06-15). As a result, in such situations, the Committee has advised that a judge must “exercise caution to avoid the perception that [the judge is] providing advice on litigation strategy or tactics” (Opinions 12-44; 11-83; see also Opinion 95-121 [Vol. XIII]). In the present inquiry, the inquiring judge must therefore avoid creating the perception that he/she is giving partisan advice on how members of the agency should conduct their investigations or draft their findings, recommendations, or reports, or on how the agency’s administrative prosecution unit should handle proceedings before an administrative law judge (see generally Opinion 12-44).

         It appears that the inquiring judge primarily plans to provide the agency with an overview of the law governing search and seizure, arrest procedures, police-citizen encounters, and related matters. In doing so, the judge “may describe generally applicable rules and procedures, and may comment generally on the administration of ... justice,” but must not “editorialize” or otherwise comment on any pending or impending cases within the United States or its territories (Joint Opinion 13-09/13-52; see also 22 NYCRR 100.3[B][8]). In Opinion 13-06, the Committee offered the following guidance on how to discuss cases which are still “pending or impending” within the meaning of the Rules, i.e., if the matter has not been finally resolved and the time for appeal has not yet been exhausted:

[M]inimal and essentially factual commentary on changes in the law in the context of updating a legal treatise – indicating the nature and extent of changes, unresolved questions, any regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision - does not constitute impermissible public comment within the meaning of the Rules, provided that the writer does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them (see 22 NYCRR 100.3[B][8]).

The Committee believes that the same principles apply here for the proposed lecture.

         Finally, the inquiring judge should take particular care if asked to comment on police-citizen encounters and relations. The judge should strive to avoid unnecessary speculation about possible attitudes, behaviors, or motivations of either the police or citizens, which could undermine the judge’s appearance of impartiality (see 22 NYCRR 100.2[A]; 100.3[B][1]). Likewise, the judge should seek to avoid the appearance that he/she is providing partisan advice on how or when to prosecute police officers, or on how citizens should interact with the police (see generally Opinion 12-44).

         The Committee concludes that the inquiring judge may address a civilian complaint review board on the law of search and seizure and arrest procedures, subject to the limitations set forth above.