Opinion 17-155
October 19, 2017
Digest: A judge may speak about landlord/tenant law at a free educational forum organized by elected officials, subject to generally applicable limitations on judicial speech and conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(4); 100.3(B)(6); 100.3(B)(8)-(9); 100.4(A)(1)-(3); 100.4(B); 100.4(G); Opinions 14-35; 13-140; 13-116; 12-49; 10-102.
Opinion:
A full-time judge asks if he/she may speak “on the topic of Landlord/Tenant responsibilities” as part of a panel at an educational forum sponsored by several legislators, and also participate in “breakout sessions” afterward. The forum is free and open to the public. Although the judge is concerned about the overall title of the program, which refers to “Housing Rights & Advocacy,” he/she has received assurances that “the event is neither pro-Landlord nor pro-Tenant, but rather is for educating all persons that are involved in Landlord and Tenant disputes.” There is nothing in the inquiry to suggest that the forum is underwritten or organized by any political party or campaign committee.
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 may generally speak, lecture, and teach (see 22 NYCRR 100.4[B]), but must ensure that his/her extra-judicial activities are not incompatible with judicial office and do not (1) cast reasonable doubt on his/her 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 judge also must not publicly comment on a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]); express a bias or predisposition with respect to cases, controversies or issues that are likely to come before him/her (see generally 22 NYCRR 100.3[B][4]; 100.3[B][9]); engage in impermissible ex parte communications (see 22 NYCRR 100.3[B][6]); or, if a full-time judge, provide legal advice (see 22 NYCRR 100.4[G]).
In general, “a judge may lecture and teach on matters relating to the law and the administration of justice” (Opinion 13-140) unless a specific prohibition applies. Thus, for example, a judge may appear on a local television news broadcast to answer questions about a predetermined topic relating to the criminal justice system (see Opinion 10-102); may speak about the Bill of Rights at a public school teachers’ conference (see Opinion 14-35); and may preside over a mock video arraignment for educational purposes during a county executive’s state of the county speech (see Opinion 12-49).
We have also advised that a Housing Court judge may speak at a meeting of a property owners’ organization about court procedures in landlord-tenant matters, subject to certain limitations (see Opinion 13-116). For example, the judge must not discuss pending or impending cases, must not provide trial strategy or legal advice, and must otherwise ensure that his/her presentation does not compromise his/her apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way (see id.).1
In our view, the organizers’ decision to use the word “Advocacy” in the event’s title does not, without more, render the judge’s participation impermissible. The event is free and open to the public, rather than limited to one side, and the organizers have assured the judge that the event itself is neither pro-landlord nor pro-tenant. Accordingly, although the judge must not engage in “advocacy,” he/she may speak on landlord/tenant law at this event, including the responsibilities of landlords and tenants, subject to generally applicable limitations on judicial speech and conduct. The inquiring full-time judge must not, of course, provide legal advice to attendees, whether in answering questions from the audience or during the breakout sessions.
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1In addition, given the one-sided nature of the audience, we advised the judge to “carefully consider whether he/she would also be willing, schedule permitting, to provide a similar lecture to a tenants’ organization on request” (Opinion 13-116).