Opinion 17-57

June 26, 2017

Dear :

          This responds to your inquiry (17-57) asking whether you may “participate on a panel discussion concerning current issues in the prosecution of computer crime in the courts of New York” for an association of criminal investigators. You have specifically been asked to “describe the unique challenges presented to a court when dealing with a technology based crime, and discuss what the law and proper procedure require[] of the judge to resolve them.” Your fellow panelists will be local prosecutors and a representative from the New York Prosecutors Training Institute.

          A judge may speak, write, lecture, teach and participate in a wide variety of educational programs on matters about the law, legal system, and administration of justice (see 22 NYCRR 100.4[B]). However, a judge must not be perceived as giving strategic or tactical advice on a partisan basis, which cast doubt on the judge’s ability to be impartial (see 22 NYCRR 100.2).

The fact that a judge would not be speaking before a general audience does not, standing alone, bar a judge’s participation. Rather, the Committee has previously advised that where, as here, the intended audience in not a “general” or “balanced” audience but, instead, comprises only “one side,” the judge must take particular care to maintain and promote public confidence in the judiciary’s impartiality and integrity (see 22 NYCRR 100.1). Thus, the judge should tailor his/her comments in such a way that they provide general information on the specific topic and do not give partisan advice or tactical litigation strategy. In order to avoid any appearance of impropriety, the judge should not instruct the audience about how to admit items or information into evidence during a trial.

Enclosed, for your convenience, are Opinions 13-116; 12-44; 09-84 and 09-62 which address this issue.

                                Very truly yours,

                                George D. Marlow, Assoc. Justice

                                 Appellate Div., First Dep’t (Ret.)

                                Committee Co-Chair

                                Hon. Margaret T. Walsh

                                Family Court Judge

                                Acting Justice, Supreme Court

                                Committee Co-Chair

Encls.