Opinion 15-148
September 10, 2015
Digest: In these circumstances, a judge, who represented a particular category of litigants in the specialized court where he/she now sits, may not remain on the e-mail list for a former colleague’s summaries, commentary, and compilations of recent cases, if this resource is unavailable to the Bar or public.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 04-20; 00-54/00-56; 03-69.
Opinion:
This judge was formerly employed by a legal services provider to one “side” of litigants in a specialized court. As he/she is now a full-time judge in that specialized court, the judge asks if he/she may remain on the former colleague’s e-mail list to receive a periodic compilation of recent cases in that legal area. The list, prepared by someone at another indigent legal services entity, consists of “a ...short summary of each case,” a paragraph with commentary on those cases (such as certain “lesson[s]” to be drawn from them), and copies of the cases. Although widely circulated within these legal service entities, the compilation is unavailable to the public or general bar. Rather, it is available only to those aware of the e-mail list and who ask to join it.1 This judge considers the list “an invaluable research tool,” and wants to distribute it to his/her judicial colleagues and law clerks.
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]). Further, a judge must not convey the impression that others “are in a special position to influence the judge” (22 NYCRR 100.2[C]).
The Committee has previously cautioned judges against participating in activities that create an impression of partiality toward one side that appears before the court (see Opinions 04-20 [judges may not attend a conference geared towards aiding the successful prosecution of crimes]; 00-54/00-56 [judges may not participate with law enforcement agencies to develop guidelines with respect to victims]). The Committee has also advised a judge not to permit his/her law clerk to co-author an article with an associate of a law firm in an area of law that the law firm regularly practices before the court (see Opinion 03-69 [noting this could create “a perception that this lawyer’s firm has some advantage or influence with the judge’s law clerk and ultimately with the judge on disputed legal issues that are likely to come before the judge”]). Plainly, a judge must never convey to the public a perception that others may have advantage or influence with the judge on disputed legal issues likely to come before him/her and compromise “public confidence [in the judiciary’s integrity and impartiality]” (22 NYCRR 100.2[A]; see Opinions 04-20; 03-69).
Here, the list is prepared and circulated by a legal services attorney who represents only one “side” in the specialized court where the judge presides. The author does not publish his/her compilation or otherwise make it available to the general public or all members of the bar, but instead distributes it only to his/her own legal services colleagues and others who represent the same “side,” along with commentary and advice for similarly situated attorneys. In these circumstances, the list appears to be a tool or resource made for the benefit of only one side appearing before the court.2 Indeed, this judge’s access to the compilation derives solely from his/her prior employment as an advocate for that side.
Thus, here, the Committee concludes this judge should leave the distribution list, as it could impermissibly convey an impression his/her former colleagues are in a special position to influence him/her and/or otherwise undermine public confidence in the judge’s impartiality (see 22 NYCRR 100.2[A]; 22 NYCRR 100.2[C]; Opinions 04-20; 03-69).
Based on this opinion, this judge may not send the legal services attorney’s summaries, commentary, and compilations of recent cases to the judge’s judicial colleagues nor their law clerks.
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1 The inquiring judge is apparently on a “secondary” e-mail distribution list prepared by his/her former colleague, rather than the “primary” e-mail distribution list maintained by the attorney who actually prepares the compilation. For purposes of this analysis, the Committee can see no reason to distinguish between the two e-mail lists.
2 By contrast, private attorneys often send out e-mails touting their recent accomplishments, publications, or changes to their practice, which appear to serve primarily as marketing materials to promote their practice to current or prospective clients. The present opinion does not address such marketing materials.