Opinion 18-36

March 29, 2018

Digest:         A judge may promote diversity in courtroom participation by including a statement in his/her part rules encouraging litigators to give their knowledgeable junior colleagues more speaking and leadership roles in his/her courtroom.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(4)-(5); 100.4(A)(1); Opinions 17-179; 17-12; 16-179; 16-151; 09-151; 07-170.

Opinion:

         A full-time judge asks if he/she may include the following language in his/her individual part rules: “To create opportunities for attorneys knowledgeable with the subject matter of the action, and who historically have been underrepresented in the courtroom, courtroom participation of such attorneys is strongly encouraged. This could be achieved, for example, by having a less senior attorney, who prepared the brief on the motion, argue the motion before me.” The judge cites a bar association report which suggests several strategies for the judiciary and others to help women attorneys achieve equality in the courtroom.

         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]). In performing judicial duties, a judge “shall not, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual orientation, religion, national origin, disability, marital status or socioeconomic status” (22 NYCRR 100.3[B][4]) and must require similar behavior from lawyers in proceedings before him/her and from those subject to the judge’s direction and control (see 22 NYCRR 100.3[B][5]). A judge must conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

         We have said a judge may join with officers of an ethnic bar association to meet with law school deans and government officials to express concern about the downward trend in minority representation within the legal profession and to advocate for increased diversity within it (see Opinion 07-170). Likewise, a judge may “participate in a job fair as a representative of a not-for-profit organization in order to encourage members of the lesbian, gay, bisexual and transgender community to” pursue careers as court officers and thereby “promote diversity in the court system” (Opinion 09-151); may establish a judicial mentoring program to help promote diversity in the judiciary (see Opinion 16-151); and may more generally “promote diversity by encouraging individuals of particular backgrounds to enter the legal profession” (Opinion 17-12).

         A judge who is president of an ethnic bar association may meet with a DA-elect’s transition team to discuss increasing diversity at the DA’s office, provided the role does not involve impermissible political activity and the judge does not recommend that the DA-elect hire specific individuals (see Opinion 17-179). A judge also may be a member of an all-female volunteer EMT service “established to expand opportunities for women in the community” (see Opinion 16-179). As always, 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” (Opinion 17-179).

         Here, the proposed language encourages litigators to look for ways to increase participation by knowledgeable attorneys in unspecified “historically under represented groups” in order to increase diversity. Moreover, it does so without casting doubt on the judge’s capacity to act impartially as a judge or otherwise manifesting bias or prejudice for or against any person. Therefore, the judge may, subject to generally applicable limitations on judicial speech and conduct, include the proposed language in his/her individual part rules.