Opinion 21-104

September 9, 2021

Digest:       Where it is legally appropriate to do so, a judge may broadly solicit participation by potential amici curiae by issuing a notice to the bar that will be (a) electronically filed, (b) sent to the New York Law Journal for publication and (c) sent to bar associations and/or committees. Any such notice must be consistent with generally applicable limitations on judicial speech and conduct, including the judge’s obligation to maintain public confidence in the judge’s impartiality, integrity, and independence.

Rules:        22 NYCRR 100.0(R)-(T); 100.2; 100.2(A); 100.3(B)(6)(b); 100.3(B)(8); Opinions 16-138; 16-12.

Opinion:

       A trial-level judge is presiding in a “complex case of first impression” with substantial public policy implications. The judge asks if it is permissible to issue a notice to the bar inviting amicus curiae participation in the matter, as the Court of Appeals has occasionally done in similar circumstances (e.g. www.nycourts.gov/ctapps/news/nottobar/noticesep11.pdf). The judge would alert the parties by filing the notice electronically, and would broadly distribute the notice to the bar by (i) sending a copy to the New York Law Journal for publication and (ii) forwarding it to bar associations or bar association committees that have written reports on similar issues. The judge asks whether there are ethical restrictions on the planned dissemination of the notice, and whether the notice should include any particular wording.

       A judge must always uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), promote public confidence in the judiciary’s impartiality (see 22 NYCRR 100.2[A]), and avoid even the appearance of impropriety (see 22 NYCRR 100.2).¹ While judges may “mak[e] public statements in the course of their official duties” and “explain[] for public information the procedures of the court,” they must otherwise avoid making “any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]). In addition, while this judge does not propose to engage in any ex parte communications, we note that the rules expressly permit a judge to obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge, “if the judge gives notice to the parties of the person consulted and a copy of such advice if the advice is given in writing ... and affords the parties reasonable opportunity to respond” (22 NYCRR 100.3[B][6][b]).

       While we cannot comment on legal issues, we see nothing in the Rules Governing Judicial Conduct that would prohibit a trial-level judge from requesting or considering amicus curiae participation in legally appropriate circumstances. For the purposes of this inquiry, we therefore assume that the judge has made a good-faith legal determination on this point.

       We have said that a judge who wishes to hire a new personal appointee may circulate the job notice through a bar association, noting that it benefits the judge, the court system, and the administration of justice when judges are able to hire well qualified persons from the public or private sector as their personal appointees (see Opinion 16-138). Similar action is acceptable here on the facts presented. We note this judge seeks to reach out broadly to the bar, and we see no impropriety in the judge utilizing the law journal and bar associations and committees to do so.

       With respect to the question of whether the judge’s notice should contain any particular language, the Committee “is not in a position to review, edit or otherwise approve/disapprove” a judge’s proposed writings (Opinion 16-12). We note, however, that the notice should comply with all applicable limits on judicial speech and conduct. As we explained (id. [citations omitted]):

For example, a judge is prohibited from making any public comment about a pending or impending proceeding in any court within the United States or its territories. In addition, you must also carefully consider whether your statements could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice, or commitment with respect to an issue or to parties that may appear before you; or otherwise undermine public confidence in your impartiality and independence.

         In sum, where it is legally appropriate to do so, we conclude a judge may broadly solicit participation by potential amici curiae by issuing a notice to the bar that will be (a) electronically filed, (b) sent to the New York Law Journal for publication and (c) sent to bar associations and/or bar association committees. Any such notice must be consistent with generally applicable limitations on judicial speech and conduct, including the judge’s obligation to maintain public confidence in their impartiality, integrity, and independence.

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¹ These core terms are defined as follows (22 NYCRR 100.0[R]-[T] [line breaks omitted]):

(R) “Impartiality” denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge. (S) An “independent” judiciary is one free of outside influences or control. (T) “Integrity” denotes probity, fairness, honesty, uprightness and soundness of character. “Integrity” also includes a firm adherence to this Part or its standard of values.