Opinion 22-13

January 27, 2022

Digest:         A judge may serve as chair of a bar association subcommittee that seeks to improve racial equity in the Unified Court System.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(4)-(5), (7); 100.4(A)(1)-(3); 100.4(C)(3); Opinions 21-182; 21-114(A); 21-81; 18-36; 17-179; 17-12; 16-179; 16-151; 12-93; 09-151; 07-170.

Opinion:

         A full-time judge asks if they may serve as chair of a bar association subcommittee that seeks to improve racial equity in the Unified Court System. The group’s stated mission is “to work with the court system in a collaborative manner to help promote the specific initiatives of the court system’s stakeholders” tasked with implementing recommendations from the Report from the Special Adviser on Equal Justice in the New York State Courts (October 2020).¹

Those stakeholders include the Deputy Chief Administrative Judge for Justice Initiatives, the Office of the Inspector General, the Office of Diversity and Inclusion, and the Franklin H. Williams Judicial Commission. The proposed bar association subcommittee “serves as a pipeline of information through active conversations with these stakeholders and leaders of affinity bar associations” in furtherance of its mission.

         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 may participate in extra-judicial activities not incompatible with judicial office which do 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 the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice (see 22 NYCRR 100.4[C][3]). A judge must “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]). In performing judicial duties, a judge “shall not, by words or conduct, manifest bias or prejudice, including but not limited to 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” (22 NYCRR 100.3[B][4]), and must require similar behavior from lawyers in proceedings before the judge (see 22 NYCRR 100.3[B][5]) and from those subject to the judge’s direction and control (see 22 NYCRR 100.3[B][4]).

         Working to ensure equal justice in the court system is not merely a laudable goal but an imperative endorsed by the Chief Judge (cf. 22 NYCRR 100.3[B][4]-[5], [7]). We see no ethical bar to the inquirer’s service on a bar association subcommittee that will collaborate with the courts in this endeavor. Indeed, our precedents make clear that judges may take affirmative steps to advance equity in a variety of contexts (see Opinions 21-114[A] [“in many circumstances, judges may affirmatively act to promote diversity and inclusion”]; 21-81 [describing many “permissible efforts to improve the legal system by combating invidious discrimination, promoting unbiased treatment, and encouraging full participation by all members of society”]).

         By way of example, we have said a judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project, and may meet together with other participating judges and committee members, to receive feedback from the volunteer observers (see Opinion 21-182). A full-time judge who is president of an ethnic judges’ association may join with officers of an ethnic bar association to meet with law school deans and various executive and legislative branch officials to express concern about the downward trend in minority representation and to advocate for increased diversity within the legal profession (see Opinion 07-170). A judge may promote diversity and gender equality in courtroom participation by including a statement in part rules encouraging litigators to give knowledgeable junior colleagues more speaking and leadership roles in the courtroom (see Opinion 18-36). A judge also may “participate in a job fair as a representative of a not-for-profit organization in order to encourage members of the lesbian, gay, bisexual and transgender community to” pursue careers as court officers and thereby “promote diversity in the court system” (Opinion 09-151); may establish a judicial mentoring program to help promote diversity in the judiciary (Opinion 16-151); and may more generally “promote diversity by encouraging individuals of particular backgrounds to enter the legal profession” (Opinion 17-12). Moreover, a judge who is president of an ethnic bar association may, with certain limitations, meet with a district attorney-elect’s transition team to discuss increasing diversity at the DA’s office (see Opinion 17-179). Finally, a judge may be a member of an all-female volunteer emergency medical technician service “established to expand opportunities for women in the community” (Opinion 16-179).

         Nor is there anything about the subcommittee’s sponsorship or affiliation to raise any concerns; to the contrary, we have recognized that “participation in bar associations and other legal organizations is to be encouraged” (Opinion 12-93).

         Accordingly, we conclude the inquiring judge may serve as the chair of a bar association subcommittee which seeks to improve racial equity in the Unified Court System.

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¹See https://nycourts.gov/whatsnew/pdf/SpecialAdviserEqualJustice Report.pdf