Opinion 18-20

March 29, 2018

Digest:         Subject to any required administrative approvals, a court attorney-referee may, without compensation, independently prepare and produce a noncommercial educational video providing legal information concerning the requirements and procedures for entitlement programs such as Medicare or Medicaid. The referee must not refer to his/her quasi-judicial office in the video and must abide by all applicable limitations on judicial speech and conduct, including the prohibitions on offering legal advice, advocating particular strategies, and promoting private interests.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(G); 100.6(A); Opinions 17-148; 17-115; 17-70; 15-93; 13-140; 12-184; 12-35; 11-41.

Opinion:

         A court attorney-referee asks if he/she may prepare and produce a video in which he/she would discuss the “legal requirements and process for entitlement programs such as Medicare or Medicaid.” The referee would undertake the production as a public service, without seeking or accepting compensation from any source, and would make the video available to the general public free of charge, whether on the internet, via public access television stations, or the like. The content of the video would be strictly informative and educational; the referee would not recommend specific approaches and would not mention or promote any entity, service or company.

          Court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their quasi-judicial duties and must otherwise “so far as practical and appropriate” use the rules to guide their conduct (22 NYCRR 100.6[A]; see Opinion 17-70). Accordingly, a referee must always 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 judicial prestige to advance private interests (see 22 NYCRR 100.2[C]). A full-time referee may not practice law, with limited exceptions not applicable here (see 22 NYCRR 100.4[G]; Opinion 11-41). As judicial duties must take precedence (see 22 NYCRR 100.3[A]), a referee’s extra-judicial activities must comport with his/her office and not (1) cast reasonable doubt on his/her duty to act impartially as referee; (2) detract from the dignity of the office; or (3) interfere with his/her quasi-judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Subject to these and other limitations, a referee may generally speak, write and otherwise participate in extra-judicial activities (see 22 NYCRR 100.4[B]; Opinion 17-70).

         A full-time judge or quasi-judicial official may lecture on legal topics, even to a lay audience (see e.g. Opinions 17-148 [union members]; 15-93 [college students]; 13-140 [civilian complaint review board]). However, in doing so, the judge must be careful not to offer legal advice or to promote a particular point of view or support one side in a particular class of cases (see Opinion 17-148; 22 NYCRR 100.4[G]). In addition, the judge may not comment about pending or impending proceedings in any court within the United States or its territories (see Opinions 17-148; 15-93; 13-140; 22 NYCRR 100.3[B][8]).

         In Opinion 17-115, we advised a full-time judge may participate in an educational video production about multi-systemic therapies, produced by a not-for-profit organization that provides such services, provided the judge “simply describe[s], objectively and without comment, the manner in which multi-systemic therapies work” (Opinion 17-115). We cautioned, however, that the “video should only be used for educational purposes; must not advocate a certain strategy or give examples of any types of strategies; and must not be used for fund-raising purposes” (id.). Although this referee proposes to prepare his/her educational video independently, rather than in connection with any other entity, we believe this does not render the proposed conduct impermissible (cf. Opinion 12-184 [a quasi-judicial employee who has independently researched and developed a plan for national economic recovery may send the plan to the President of the United States, provided that he/she does so as a private citizen and does not in any way refer to his/her quasi-judicial office or use official stationery]).

         Accordingly, subject to any necessary administrative approvals,¹ we conclude the referee may, without compensation, independently prepare and produce a noncommercial educational video providing legal information concerning the requirements and procedures for entitlement programs such as Medicare or Medicaid. The referee must not refer to his/her quasi-judicial office in the video and must abide by all applicable limitations on judicial speech and conduct, including the prohibitions on offering legal advice, advocating particular strategies, and promoting private interests (see generally Opinions 17-148; 17-115; 12-184; cf. Opinion 12-35 [distinguishing between permissible “legal information” and impermissible “legal advice”]).

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         ¹ The referee may contact the Nonjudicial Ethics Helpline (888-283-8442) for guidance on any possible issues that may arise under Part 50.