Opinion 17-131

September 7, 2017

Digest:         A judge may participate in an interview with a not-for-profit entity which provides mediation services in a court where the judge formerly presided, subject to certain limitations. 

Rule:            22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); Opinions 16-115; 15-213; 14-85; 13-116; 13-13; 12-149; 11-122; 07-161; 00-50; 99-178; 93-30.

Opinion:

         A full-time judge asks if he/she may participate in an interview with a not-for-profit entity that provides mediation services in a court where the inquiring judge formerly presided. The entity does not provide services in the specialized part where the judge currently presides, and the judge no longer expects to have any occasion to make referrals to the entity. The judge further understands the interview will not be used for publicity. Rather, the entity hopes to gain insight for its own internal strategic planning process as it determines its organizational direction and sets strategic priorities for the near future.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Because an independent and honorable judiciary is indispensable to justice in our society (see 22 NYCRR 100.1), a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Nonetheless, a judge may generally engage in extra-judicial activities that 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]). A full-time judge must not serve as an officer, director, trustee or non-legal advisor of an organization if it is likely that the organization will “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]) or “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]).

         We note two key competing principles here. On the one hand, “[e]ncouraging the settling of disputes by alternative methods without involving the courts can be viewed as improving the justice system” (Opinion 93-30). In that sense, a judge’s willingness to share his/her personal observations about effective and ineffective mediation efforts could help facilitate settlement of additional disputes and thereby help the court system allocate scarce judicial resources where they are most needed. On the other hand, a judge must not “participate in otherwise laudable community activities that will compromise the judge’s impartiality” (Opinion 13-13) or create an appearance that the judge is lending the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

         Accordingly, we conclude the judge may participate in the proposed interview subject to certain limitations.

         First, we see the judge’s role in the interview as akin to serving as a non-legal advisor for a not-for-profit organization, which is generally permissible where, as here, the entity is not likely to be engaged in “proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]) or “adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]) and where the judge does not have occasion to make referrals to the entity (see e.g. Opinion 15-213). The judge should not discuss any specific matter that does not already have a final disposition (see 22 NYCRR 100.3[B][6] [ex parte communication rule]; 100.3[B][8] [public comment rule]). To avoid any possible appearance of impropriety, the judge also should not participate in the interview unless he/she is also willing to participate in interviews with other similarly situated not-for-profit mediation entities, if requested (cf. Opinions 16-115; 13-116; 12-149).

         Second, the judge “should act in a purely advisory capacity, should not be involved in any of the disputes nor should he or she receive any compensation” (Opinion 93-30; see also Opinion 11-122).

         Third, the judge must refrain from any discussion involving competitors and individuals or organizations offering similar or analogous services to this not-for-profit entity. The judge’s remarks must be limited to his/her observations of this entity, e.g. what the inquiring judge thinks it has done effectively or ineffectively and how it could improve, without reference to other organizations.

         Fourth, the judge should be very cautious concerning any discussion of his/her current court, and should decline to discuss possible expansion of its services to that court. At all times, the judge must avoid even the perception of favoritism or any sort of partiality for the entity, especially as it relates to his/her current court (see Opinions 99-178; 00-50; cf 07-161 [judge may not serve as member of board of a dispute resolution agency to which judge refers cases]).

         In sum, this judge may participate in the interview and discuss his/her personal observations of the not-for-profit mediation entity’s past performance, on the understanding his/her remarks will be used solely for the entity’s internal purposes (cf. Opinion 14-85 [judge may not provide a testimonial for his/her former campaign manager to use in advertisements]). The judge must abide by all applicable limitations on judicial speech and conduct, and should not advise the entity on how to become more competitive or how to expand its operations into the judge’s current court.