Opinion 17-24

March 16, 2017

Please Note: While it does not affect the outcome here, see AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge who presides in a high-volume part may hold annual or semi-annual meetings with the attorneys who appear before him/her to discuss administrative issues. These meetings may not involve catered meals paid for by attorneys, but the judge may host “brown bag luncheons” to which the participants may bring their own meals.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(C)(1); 100.4(D)(5)(a)-(h); 100.4(H)(2); Opinions 15-122; 13-151; 07-188; 07-15.

Opinion: 

         A full-time judge who presides in a high-volume part asks if he/she may hold “semi-annual or annual” meetings with the attorneys who practice in the part so they “can make me aware of issues of general importance to them” and “hopefully aid in the smooth running” of the court. If such meetings are permitted, the judge asks if the attending lawyers may provide catered meals; the judge and his/her staff would not participate in collecting funds.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must diligently discharge all his\her duties without bias or prejudice, maintain professional competence in court administration, and cooperate with other judges and court officials in performing court business (see 22 NYCRR 100.3[C][1]); and may not allow social or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]).

Bench-Bar Meetings

         Judges may attend “bench-bar meetings” with lawyers practicing in the courts to discuss generally “how the court system functions and how it can be improved” (Opinion 07-188). Such meetings, as envisioned, do not address specific cases within the court system but instead seek to encourage frank discussions concerning “administrative difficulties or successes, concerns and recommendations, by attorneys who frequently litigate in the court system” (id.). The Committee emphasized “[t]he importance of an active dialogue between judges and lawyers regarding the improvement of the courts” and concluded “it is appropriate - indeed necessary - for judges to attend and take part in these discussions, even when there are lawyers present with active and direct involvement in matters before the judge, subject to certain restrictions” (id.). Similarly, trial and appellate judges may host “brown bag luncheons” to discuss issues of law and practice with members of the bar (see Opinion 07-15).

         When participating in such meetings, judges must, of course, observe generally applicable limitations on judicial speech and conduct. For example, they must avoid impermissible ex parte communications and must not comment on pending or impending cases within the United States or its territories (see Opinions 07-188; 07-15; 22 NYCRR 100.3[B][6]; 100.3[B][8]). Their comments must not reasonably suggest bias or a predisposition to decide particular cases in a specific way and must not give partisan advice on tactics or strategy (see Opinions 07-188; 07-15; 22 NYCRR 100.2[A]). Also, to avoid casting doubt on the judge’s impartiality, such meetings “should... be balanced among lawyers representing all interests before the court” (Opinion 07-188).¹

         Here, too, where the proposed meetings seek feedback from all attorneys in the part to improve the court operations, the judge may hold such meetings, subject to all applicable limitations on judicial speech and conduct, including the rules on public comment and ex parte communications (see Opinions 07-188; 07-15; 22 NYCRR 100.3[B][6]; 100.3[B][8]). The judge should strive to ensure balanced meetings among lawyers representing all interests before the court (see Opinion 07-188).

Catering

         Although a judge may not accept all gifts, the Rules Governing Judicial Conduct permit a judge to accept certain specified categories of gifts (see 22 NYCRR 100.4[D][5][a]-[g]). In addition, a catch-all provision permits a judge to accept a gift from a “donor who is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge” (22 NYCRR 100.4[D][5][h]), provided the gift does not create an appearance of impropriety or otherwise violate any provision of the Rules, and subject to certain reporting requirements in the case of a full-time judge (see Opinion 13-151; 22 NYCRR 100.4[D][5][h]; 100.4[H][2]).

         A judge may not permit a former judge, who now practices in his/her court, to donate a food platter to the judge and his/her staff (see Opinion 15-122). The Committee concluded “[a] food platter does not appear to fall within any of the specifically enumerated exceptions” (id.). Moreover, where the would-be donor is a litigator in the judge’s court, “the catch-all exception” is inapplicable because the donor is a “person who has come or is likely to come” before the judge (Opinion 15-122; 22 NYCRR 100.4[D][5][h]).

         Here, too, permitting an attorney to provide a catered meal for a semi-annual or annual meeting with the judge and his/her staff is an impermissible gift (cf. Opinion 15-122) and could create the unintended impression that such person(s) are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Therefore, these meetings may not be catered by the attorneys in attendance. The judge may, instead, invite the attorneys to bring their own food for a “brown bag luncheon” meeting.

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         ¹If such balance proves impractical, the judge “should either (i) limit the discussion purely to administrative matters and not address substantive or procedural issues that would provide one side with a procedural or tactical advantage; or, (ii) afford all other absent interests the opportunity to be heard” (Opinion 07-188).