Opinion 13-34

March 14, 2013

Digest:         A judge who presides in a criminal part may not lecture at an anti-violence program at a local correctional facility, where the attendees are persons who are incarcerated while either awaiting disposition of an unresolved case or awaiting sentence, and could appear before the judge as criminal defendants.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); Opinions 12-74; 99-21 (Vol. XVII).

Opinion:

         The inquiring judge, who presides in a criminal part, states that he/she has observed a session of an anti-violence program which “is designed to be presented at [c]orrectional [f]acilities and [d]etention [c]enters to young people who are incarcerated.” At that session, a medical professional and a recent law school graduate provided their personal perspectives on relevant topics. The judge asks if he/she may also participate in the anti-violence program by speaking to young people at a local facility “regarding avoidance of violence and [the] consequences of engaging in” violence. The judge notes that the individuals incarcerated at the facility “are not serving a sentence, but are either awaiting disposition of an unresolved case or are awaiting sentence,” and thus, the judge’s audience could include “persons whose cases are pending before me.”

         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 may speak, lecture, teach and otherwise participate in extra-judicial activities (see 22 NYCRR 100.4[B]), as long as such activities are not incompatible with judicial office and do 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]). However, a judge must not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding except as permitted by rule or law (see 22 NYCRR 100.3[B][6]).

         The Committee has recognized that the community benefits from having judges take an active part in community affairs whenever possible, including community efforts to prevent juvenile delinquency (see Opinion 99-21 [Vol. XVII]), or in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and unlikely to be perceived as a law enforcement program (see Opinion 12-74).

         Here, however, it appears that the target audience for the anti-violence program lecture would be persons who (a) are currently incarcerated pending disposition of the charges against them and/or pending sentencing and (b) could appear before the judge as criminal defendants.

         The Committee notes that, from the perspective of an individual who hears the judge’s anti-violence presentation while he/she is detained at a local correctional facility, and who is then brought before the same judge for a hearing of the charges against him/her, it may seem reasonable to question the judge’s impartiality. Moreover, although the Committee recognizes that the inquiring judge may indeed be able to remain impartial, the Committee cannot say that this perception on the part of criminal defendants would be objectively unreasonable under the circumstances presented.

         In addition, as the audience members could include defendants who will appear before the judge after the proposed presentation, the judge would be speaking to defendants without their lawyers being present. Thus, there is a risk that the judge would, inadvertently, be engaging in impermissible ex parte communications. Finally, it is not unlikely that an audience member could misinterpret some aspect of the judge’s presentation as applying to his/her particular case, and challenge the judge’s decisions on that basis during subsequent court proceedings.

         Therefore, the inquiring judge may not participate in the program as described (see 22 NYCRR 100.4[A][1]).