Opinion 16-115

September 8, 2016

Digest:         A judge may permit his/her law clerk to teach a class on the Penal Law to law enforcement personnel, provided he/she does so in a manner that promotes public confidence in the judiciary’s impartiality and integrity and does not suggest a predisposition on any particular matter. The law clerk should also be willing to teach a similar course to a defense-side audience, if requested.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); 100.3(C)(2); Opinions 15-179; 15-93; 13-140; 12-44; 11-83; 09-208; 09-129; 09-127; 07-29; 06-77; 03-69.

Opinion:

         A full-time judge presiding in multiple courts asks if his/her law clerk may teach a class on “the basics of New York Penal Law” to law enforcement officers working at a local military installation. The law clerk would provide “a basic overview of different Penal Law Articles that could be relevant” at the facility, “such as Burglary, Assault, and others.” On occasion, the judge presides in a court which could hear cases involving the facility or its personnel. However, no such cases have yet come before him/her.

         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 also must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Although “the limitations on the extrajudicial conduct of a judge do not automatically apply to the judge’s law clerk” (Opinion 09-127), a judge shall “require [his/her] staff ... to observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]). Similarly, a judge must require “court personnel subject to [his/her] direction and control” to abstain from “public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]).

         A “law clerk may...speak, write and lecture on the law” (Opinion 03-69). But, as a law clerk’s position involves “particular trust and confidence” (Opinion 09-129), his/her “outside activities must be evaluated in light of the possible impact they may have on the... obligation to maintain public confidence in the independence and impartiality of the judiciary, and to avoid allowing others to convey the impression...they are in a special position to influence a judge” (id.; see 22 NYCRR 100.1; 100.2[A]; 100.2[C]).

         The Committee has advised that “a judge may not teach police officers how to prosecute traffic cases successfully, because, ‘in effect, [the judge] would be advising the prosecution how to obtain convictions.’ Nor may a judge provide guidance to local police about how to draft legally sufficient accusatory instruments or about proper courtroom decorum and demeanor when testifying in the courtroom” (Opinion 12-44 [citations omitted]). Similarly, a judge may not permit his/her law clerk to participate in critiquing a trial advocacy course offered by a prosecutors’ training institute, because “a law clerk’s participation in a program that is offered only to prosecutors for the purpose of improving their prosecutorial skills could create an appearance of impropriety” (Opinion 09-129).¹

         However, merely because the intended audience consists solely of law enforcement personnel is not necessarily a bar. The Committee has advised that “it is permissible for a judge to present or participate in educational programs for law enforcement personnel that do not compromise the judge’s apparent or actual impartiality” (Opinion 12-44, quoting Opinion 07-29). The fact that the audience is limited to law enforcement personnel does not, in and of itself, render a speaking engagement ethically impermissible (see Opinion 13-140; 09-208). Rather, the law clerk “must take particular care that his/her topic will not compromise the [judiciary’s] impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way” (Opinion 12-44 [citation omitted]).

         Critically, this law clerk does not propose to offer strategic or other advice to help law enforcement officers or prosecutors win cases. Rather, he/she will provide “a basic overview” of Penal Law articles, such as battery and assault (see e.g. Opinion 13-140 [a judge may address a civilian complaint review board on the law of search and seizure and arrest procedures, subject to certain limitations]). The topic is “one that warrants public discussion in order to improve the administration of justice” (Opinion 15-93). However, the law clerk must “exercise caution to avoid the perception that [he/she is] providing [partisan] advice on litigation strategy or tactics” (Opinion 11-83; accord Opinion 12-44; see also Opinions 13-140; 06-77). Thus, the law clerk “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” (Opinion 15-93 [citations omitted]). Also, he/she “should discourage any discussion of a case that is currently pending before the judge” for whom he/she is employed (id.; cf. 22 NYCRR 100.3[B][6]).

         Accordingly, this judge may permit the law clerk to teach classes on general Penal Law topics to law enforcement officers at a military facility, provided he/she is teaching “in such a manner as to promote public confidence in the judiciary’s impartiality and integrity and not suggest a predisposition on any particular matter” (Opinion 15-179). Moreover, the judge should advise his/her law clerk to consider whether he/she would be willing (if requested) to give a similar presentation to a defense-side audience. If the law clerk concludes he/she would be unwilling to do so, he/she should refrain from accepting the present speaking engagement.

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         ¹ The Committee explained its reasoning in more detail in Opinion 12-44, noting that “it would be difficult, if not impossible, for a judge who is presiding over and critiquing a mock trial as part of a trial advocacy program for a ‘one-sided’ audience to avoid the appearance that he/she is teaching or giving partisan advice on litigation strategy or tactics to that ‘side’” (Opinion 12-44).