Opinion 21-59(A)

April 29, 2021

Digest:       A judge may speak at a victim impact panel in a jurisdiction other than that where the judge presides, but when the program is conducted online as a remote or virtual program, the judge must (1) advise the agency that the judge’s presentation is solely for program participants and must not be made available to a broader audience and (2) direct the agency to prohibit recording or distribution of the judge’s presentation by attendees.

Rules:        22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); Opinion 13-79.

Opinion:

         A judge asks about speaking at a victim impact panel in a county other than where the judge is assigned, when the program is conducted online as a remote or virtual program.¹ The judge’s concern is that attendees might save the presentation on their computers or other devices and then disseminate the recording “in the jurisdiction where the judge presides,” contrary to Opinion 13-79.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must not lend the prestige of judicial office to advance any private interests or permit anyone to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Additionally, a judge may speak, teach and lecture as long as doing so is not incompatible with judicial office; does not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with proper performance of the judge’s judicial duties (see 22 NCYRR 100.4[A][1]-[3]; 100.4[B]).

         As noted in the inquiry, we have previously advised a judge “may not participate as a presenter at a victim impact panel in the jurisdiction where the judge presides,” but may nonetheless “participate in such a panel in another jurisdiction” (Opinion 13-79 [noting the judge “would emphasize his/her own views and experience as a former offender who was required to attend the same program as part of his/her own sentence”]). Here, the concern is the use of technology to provide remote access to the victim impact panel during the pandemic, and more specifically the risk that the program could be made available to individuals in the judge’s jurisdiction.

         We believe the judge may continue to participate as a presenter in victim impact panels outside the jurisdiction where the judge presides, consistent with Opinion 13-79, but when the program is conducted online as a remote or virtual program, the judge must (1) advise the agency that the judge’s presentation is solely for program participants and must not be made available to a broader audience and (2) direct the agency to prohibit recording or distribution of the judge’s presentation by attendees. Beyond this, we believe the judge need not take any further action.²

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¹ It seems that victim impact panels, like many other programs and services, have been moved online in response to current public health concerns.

² To the extent the geographical limitation is intended “to avoid any possible appearance of impropriety and to minimize the risk of inadvertent ex parte communications” inherent in the judge speaking at a victim impact panel to which the judge could potentially refer defendants as part of their sentence (Opinion 13-79), we note that neither of those concerns is implicated if attendees make and share unauthorized recordings of the program online.