Opinion 21-182

January 27, 2022

Digest:         A judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project, and may meet as a group with other participating judges and committee members to receive feedback from the volunteer observers, but may not meet privately with volunteer observers to discuss their feedback on the judge’s own court sessions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(4); 100.3(B)(6); 100.3(B)(8); 100.3(C)(1); Opinions 21-81; 20-96; 17-24; 15-179; 13-124/13-125/13-128/13-129; 13-92; 11-85; 07-188; 07-15.

Opinion:

         The inquiring judge was asked by an administrative judge to co-chair a planning committee for a judicial observation project to help educate the judiciary and eliminate implicit bias.¹ Planning committee members will include representatives from the judiciary, a ministries group, the district attorney’s office, the public defender’s office, and an agency that provides pre-trial services as an alternative to incarceration. As envisioned, the project will train “volunteer observers from various backgrounds” on implicit bias issues, and then send three volunteers to observe a participating judge for at least six court sessions over a two-month period. Following the observation phase, the volunteers would provide feedback to participating judges (including the inquiring judge) about any implicit bias concerns or issues they may have observed. The judge asks if it is permissible to meet privately with the three-member observation group to receive this feedback. Alternatively, the judge asks if it is permissible to meet in a group setting with all the judges and volunteers participating in the project, along with the entire planning committee, to hear a summary of feedback from the volunteer observers.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must diligently discharge judicial duties “without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]). The prohibition includes “words or conduct” manifesting “bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” (id.). A judge must maintain professional competence in court administration, including cooperating with other judges and court officials in performing court business (see 22 NYCRR 100.3[C][1]). A judge must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B][1]), must avoid impermissible comment on pending or impending matters (see 22 NYCRR 100.3[B][8]), must not demonstrate a predisposition to deciding cases in a specific way (see 22 NYCRR 100.2[A]), and must avoid improper ex parte communications (see 22 NYCRR 100.3[B][6]).

1. Heading the Planning Committee

         The purpose of the judicial observation project is to address and educate the judiciary on implicit bias and systemic racism and the impact on the court system. Efforts to combat invidious discrimination in the court system and otherwise promote unbiased treatment of litigants are clearly intended to improve the law, the legal system and the administration of justice (see 22 NYCRR 100.3[B][4]; Opinion 21-81). Indeed, we have said a judge may serve on a county executive’s working group to review training at the county police academy, where the group’s membership is balanced and its goal is to help reduce and eliminate implicit bias (see Opinion 20-96). Here, as described, the planning committee likewise consists of a balanced set of representatives including both defense and prosecutorial perspectives as well as other stakeholders. As we see no impropriety in the sponsorship, mission, or composition of the planning committee, we conclude the inquiring judge may serve as a co-chair.

2. Meeting Privately with Volunteer Observers

         We note, initially, that the identity and affiliations of the three volunteer observers are unknown. Indeed, while they may be drawn from the local community, there is no assurance that they can or will represent a balanced or broad spectrum of interests in the same manner as the planning committee. We have said a judge must not meet privately with a local political party regarding the inner workings of the court (see Opinion 13-92) or with the representatives of a local victim advocacy group (see Opinion 11-85). Nor may a judge meet privately with the public defender concerning the implementation of a counsel at arraignment program for indigent defendants, unless the district attorney consents (see Opinion 13-124/13-125/13-128/13-129).

         While we recognize the project’s goal is to reduce or eliminate implicit bias in the courts by providing feedback to participating judges after observing court sessions, holding such discussions in a private setting could create an appearance of impropriety (cf. 22 NYCRR 100.2[C] [a judge must not “convey or permit others to convey the impression that they are in a special position to influence the judge”]). Thus, the judge should not meet privately with the volunteer observers to discuss any feedback they may have for the judge.

3. Meeting in a Group Setting with Volunteer Observers

         We reach a different conclusion with respect to meeting in a group setting with all participating judges, volunteer observers, and the planning committee to hear a “summary of feedback from all of the volunteer observers.”

         We have said that a judge may give a presentation on recognizing and reducing racial prejudice to an audience consisting exclusively of attorneys who represent a certain category of litigants, although it is preferable to make any presentation to a balanced audience (see Opinion 15-179). We have also recognized that judges may meet with attorneys who regularly appear before them, subject to certain safeguards, in order to improve the legal system or the administration of justice (see e.g. Opinions 17-24; 07-188; 07-15). Here, the proposed project is intended to promote public confidence in the judiciary by helping educate the court system and the judiciary on implicit bias and systemic racism. An active dialogue among judges, lawyers and the volunteer observers in a group setting is a preferable approach, as it helps reduce the risk of any appearance that the observers “are in a special position to influence the judge” (22 NYCRR 100.2[C]; cf. Opinion 07-188 [concluding “it is appropriate - indeed necessary - for judges to attend and take part in” an “active dialogue” with attorneys regarding improvement of the courts]).

         Accordingly, we conclude the inquiring judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project, and may meet as a group with other participating judges and committee members to receive feedback from the volunteer observers, subject to generally applicable limitations on judicial speech and conduct, but may not meet privately with volunteer observers to discuss their feedback on the judge’s own court sessions.

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¹ The project was designed in collaboration with a not-for-profit entity.