Opinion 17-179

December 7, 2017

Digest:         A full-time judge who is the president of an ethnic bar association may participate as the bar association president in a meeting with a DA-elect’s transition team on issues involving the law, the legal system and the administration of justice, subject to certain conditions and limitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3); 100.5(A)(1); Opinions 16-93; 15-93; 13-140; 13-124/13-125/13-128/13-129; 10-07; 09-151; 07-170; 06-154/06-167.

Opinion:

         A newly elected district attorney has invited the leadership of an ethnic bar association to meet with his/her transition team. The inquiring full-time judge, who is president of the association, asks if he/she may participate and discuss 1) maintaining and increasing the bar association’s internship program at the DA’s office; 2) increasing diversity at the DA’s office and 3) reducing certain apparent racial or ethnic disparities in arrests.

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 must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]), must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]), and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]) but otherwise may generally participate 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]).

         We note, initially, that the proposed topics for discussion clearly seek to improve the legal system and the administration of justice (see e.g. Opinion 07-170). As we have recognized, “judges are generally encouraged to participate in bar association activities devoted to improvement of the law, the legal system, and the administration of justice” (Opinion 16-93 [internal quotation marks and emphasis omitted]). Hence, we conclude the judge, in his/her capacity as bar association president, may participate in a collaborative effort to address these issues, subject to the following conditions and limitations.

         First, while executive branch transition teams tend to be politically partisan in nature, this judge will not be serving as a partisan member of the transition team but rather assisting, in his/her capacity as representative of a bar association, in an effort to address issues involving the law, the legal system and the administration of justice (cf. 22 NYCRR 100.4[C][3]; Opinion 16-93). The judge may not participate if the role becomes politically partisan in nature (see generally 22 NYCRR 100.5[A][1]; Opinion 07-170).

         Second, in light of the specific topics proposed here, the initiative must be collaborative, rather than solely prosecution-oriented.¹ That is, one or more representatives of the defense bar (such as the public defender’s office, Legal Aid, and/or 18-b attorneys) and/or any other substantially interested stakeholders must also be invited to participate in the discussions (see Opinions 06-154/06-167; 13-124/13-125/13-128/13-129; 15-93). However, if defense bar representatives decline a reasonable opportunity to participate, the judge may treat it as implied consent to the judge’s participation in the initiative (see Opinion 13-124/13-125/13-128/13-129).

Third, while the judge may discuss ways to increase minority representation (see Opinions 09-151; 07-170), he/she should be careful to avoid the appearance that he/she is advancing private interests by recommending that the DA-elect hire specific individuals (see 22 NYCRR 100.2[C]).²

         Fourth, we have previously advised that, when asked to comment on police-citizen encounters and relations (Opinion 13-140 [citations omitted]), a judge:

should strive to avoid unnecessary speculation about possible attitudes, behaviors, or motivations of either the police or citizens which could undermine the judge’s appearance of impartiality. Likewise, the judge should seek to avoid the appearance that he/she is providing partisan advice on how or when to prosecute police officers, or how citizens should interact with the police.

Similar principles apply where, as here, a judge wishes to discuss with a prosecutor how he/she might address apparent race-based disparities in arrests.

         Finally, we note the judge’s participation remains subject to generally applicable limitations on judicial speech and conduct, including the public comment rule; the prohibition on impermissible ex parte communications; the need to avoid even the appearance of impropriety and to maintain the independence of the judiciary (see Opinion 15-93). As always, the judge must ensure that his/her comments and participation do not cast reasonable doubt on his/her capacity to act impartially or interfere with the proper performance of judicial duties (see id.).

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¹ We note, for example, that how to reduce racial disparities in arrests is a substantive topic that warrants inclusion of defense perspectives in addition to prosecutorial/law enforcement perspectives.

² Of course, the judge may still, in appropriate circumstances, serve as a reference for an individual who is seeking employment (see e.g. Opinion 10-07).