Opinion 18-41

March 29, 2018

June 21, 2018 Addendum: After this inquiry was decided, the organizers invited the Public Defender to participate on the faculty panel.  In our view, the Public Defender’s participation here will help ensure balance and minimize the risk that the program will be seen as a one-sided, law enforcement program.  Accordingly, judges and their court clerks may attend.

Digest:         Judges and court clerks may not attend a training program sponsored by the county Ignition Interlock Monitor, where the program will address post-conviction sentencing compliance enforcement, the faculty expressly excludes defense perspectives, and the defense bar has not been invited to attend the program.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1), (3); Opinions 08-21; 94-31.

Opinion:

         The inquiring judge, who is also an officer of a magistrates’ association, has received an invitation to attend a free “training / legal update session for Magistrates and Court Clerks” concerning the ignition interlock program, including post-conviction sentencing compliance enforcement issues. The program is sponsored by the county’s ignition interlock monitor and will be held at the county’s emergency response center. The faculty will consist of representatives of the local Stop-DWI office, the district attorney’s office, the probation department, the county Ignition Interlock Monitor, and a sitting judge. However, the sponsor has expressly declined to invite any members of the defense bar to serve as faculty. On these facts, the judge asks if it is ethically permissible to attend the program.

         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’s judicial duties take precedence over all other activities (see 22 NYCRR 100.3[A]), and therefore a judge must not engage in extra-judicial activities that “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][3]).

         We have previously advised that judges must not attend training sessions sponsored by a law enforcement agency if the purpose is “to maximize enforcement” (Opinion 94-31). We have also advised that members of a county magistrates’ association may attend an educational program sponsored by the county probation department about implementing post-conviction polygraph testing for convicted sex offenders, but only if the program (1) is not intended solely to promote law enforcement goals and (2) is open generally to the defense bar as well as law enforcement officials (see Opinion 08-21).

         On its face, the training program’s purpose and agenda appears designed to enhance post-conviction compliance enforcement of convicted DWI defendants with their ignition interlock sentencing conditions/mandates. The absence of defense representatives on the faculty and in the audience further underscores and exacerbates the one-sided nature of the program. We therefore conclude that the judges must not attend this program under these circumstances, and they should advise their court clerks not to do so.