Opinion 21-65

April 29, 2021

Digest:         A judge may not accept a social media company’s invitation to address its employees in-house about how legal process is authorized, the use and purpose of the company’s records in legal proceedings, and the importance of accuracy and vigilance in response to legal process.

Rules:          22 NYCRR 100.2; 100.2(A), 100.2(C); 100.4(A)(1); 100.4(B); 100.4(D)(3); Opinions 14-196; 13-187; 12-44; 09-92; 05-12; 04-111; 03-84/03-89; 01-58; 00-120; 98-121; 96-143.

Opinion:  

         A full-time judge who sometimes reviews and decides ex parte applications for search warrants directed at a particular social media company asks if they may accept the company’s invitation to speak at an “informal session” organized by the head of the unit “responsible for the [company’s] response to legal processes submitted by law enforcement in relation to criminal investigations, including subpoenas and search warrants.” The company would like the judge to address “how legal process is authorized, the use and purpose of the records [the company] produce[s] in legal proceedings and the importance of accuracy and vigilance in the response to legal process.”

         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 must not lend the prestige of judicial office to advance any private interests, nor permit anyone to convey “that they are in a special position to influence the judge” (22 NYCRR 100.2[C]). A judge generally may teach, write and speak (see 22 NYCRR 100.4[B]), subject to generally applicable limitations on judicial speech and conduct. For example, such extra-judicial activities must not cast reasonable doubt on the judge’s capacity to act impartially (see 22 NYCRR 100.4[A][1]).

         While a judge may, in appropriate circumstances, accept an invitation to speak to a one-sided audience, the judge must exercise caution to avoid the perception that the judge is providing advice on litigation strategy or tactics as such would cast doubt on the judge’s impartiality (see Opinions 12-44; 03-84/03-89).

         Here, however, the invitation is to speak “in house” at a for-profit entity whose interests may come before the judge. We have said it is impermissible for a judge to provide a private law firm with the benefit of their judicial knowledge, expertise and experience by providing instruction in legal writing and advocacy skills to a law firm’s associates as part of the firm’s in-house continuing legal education (CLE) program (see Opinion 01-58); presenting an in-house CLE program for lawyers and paralegals employed by the judge’s former law firm (see Opinion 09-92); or critiquing a mock settlement conference for a private law firm’s associate training program (see Opinion 13-187). Beyond the law firm context, we have also said a judge who presides in medical malpractice cases may not accept a private, in-house speaking engagement for the board of trustees of a medical facility that regularly appears before the judge (see Opinion 14-196).

         Here, the inquiring judge is being asked, in essence, to instruct employees of a for-profit company on how to respond to the search warrants that may be authorized by the judge. Accepting this speaking engagement could jeopardize the public’s confidence in the judiciary’s integrity and impartiality, as it “may create an appearance the judge has granted the [company] special access to the judge, or that the judge is showing favoritism to the [company] by agreeing to share his/her judicial knowledge, expertise and experience concerning [legal process] exclusively with [that company’s employees]” (Opinion 14-196). The judge’s participation in this session could thus create an appearance of lending the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

         We note that providing a private educational session “in house” at a for-profit entity is especially problematic for a full-time judge, who may not serve as an “advisor” or “other active participant” for any business entity (see 22 NYCRR 100.4[D][3]). The proposed informal private session for these employees could readily be seen as giving them advice about legal matters they encounter in the regular course of their business as a social media company, connected to the search warrants that occasionally come before the judge.¹

         Accordingly, we conclude the judge may not accept this speaking engagement.

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¹ In some instances, a full-time judge may participate as a speaker or panelist at a CLE program sponsored by a for-profit entity, if the judge is uncompensated and the sponsor is not a party in a contested adversarial proceeding presently pending before the judge (compare Opinions 05-12; 00-120 with Opinions 04-111; 98-121; 96-143). Here, however, the entity does not appear to be an accredited CLE provider, and the event would be limited to the company’s own employees.