Opinion 22-170

December 15, 2022

Digest:       A full-time judge (1) may write and teach on legal topics such as no-fault insurance arbitration but (2) may not respond to private inquiries from no-fault insurance arbitrators on specific cases.

Rules:        22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.4(F)-(G); Opinions 20-13; 17-155; 13-140; 11-77; 10-166; 10-153; 10-133; 09-127.

Opinion:

         The inquiring judge-elect will assume full-time judicial office on January 1. As a private attorney, the inquirer served for many years as a no-fault insurance arbitrator under Insurance Law art 51 and engaged in extensive teaching, writing, and mentoring activities in the field. The inquirer would like to continue these activities and thus asks if it is permissible, as a full-time judge, to (1) write, revise, and edit textbooks, casebooks, and reference guides that will be provided to no-fault arbitrators for free or at cost; (2) organize and teach at continuing legal education (CLE) programs for no-fault arbitrators for free or at cost; and (3) respond to inquiries from no-fault arbitrators about procedural and substantive issues.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties take precedence over all the judge’s activities (see 22 NYCRR 100.3[A]). Thus, a judge’s extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Nonetheless, a judge may “speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of this Part” (22 NYCRR 100.4[B]). For example, a judge may not “make 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]) and may not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]). A full-time judge must not act as an arbitrator or mediator (see 22 NYCRR 100.4[F]) or practice law (see 22 NYCRR 100.4[G]).

Educational Programs and Materials

         The inquirer’s first two questions are non-controversial and largely covered by prior opinions. A full-time judge may write, revise, and edit textbooks, casebooks, and reference guides that are provided to arbitrators in the field, and may organize and teach at CLE programs for no-fault arbitrators, subject to generally applicable limitations on judicial speech and conduct, including the public comment rule (see e.g. Opinions 17-155 [judge may speak about landlord/tenant law at a free educational forum]; 10-153 [judge may write a column for a bar association’s newsletter on evidentiary issues connected with the county’s “red light” automatic camera program]).

         The inquirer asks further whether it is permissible to charge fees for the materials or the course programs that do not exceed the cost of publication, circulation, and providing the programs. We find no ethical prohibition in doing so (see e.g. Opinion 20-13 [part-time judge may charge modest fee for non-judicial event to cover costs]).¹

         While the judge’s programs and materials may describe generally applicable rules and procedures, and may comment generally on the administration of justice, we note they must not “editorialize” or otherwise comment on any pending or impending cases within the United States or its territories (see 22 NYCRR 100.3[B][8]); Opinions 13-140; 11-77 [no exception for CLE programs]). Clearly, the programs and materials should not be so one-sided as to compromise the judge’s appearance of impartiality (see e.g. Opinions 10-166; 09-127), nor may they discuss issues that are inherently political or highly controversial (see Opinions 10-133). Of course, we cannot foresee every fact pattern; the judge should exercise sound discretion and may write in for additional guidance on specific circumstances that may arise.

Inquiries From Arbitrators

         Finally, with respect to responding to private inquiries from no-fault arbitrators, we understand the inquirer has long served informally as a mentor/advisor to other no-fault arbitrators. This has involved critiquing their draft arbitration awards (in aspects such as organization, structure, grammar, and case law citations) and answering questions about “whether there [are] applicable statutory or regulatory provisions or case law concerning the issue they [are] dealing with.”

         On the facts presented, we believe the inquirer’s proposed involvement in these areas is impermissible. We note that these inquiries are virtually certain to involve pending or impending arbitration cases, in which a full-time judge may not participate, whether by critiquing draft opinions or providing legal research assistance and guidance (see 22 NYCRR 100.4[F]; cf. 22 NYCRR 100.4[G]). Accordingly, on assuming full-time judicial office, the inquirer should discontinue these activities.

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¹ While we cannot review and comment on the requirements necessary for the inquirer to be certified as an “accredited provider” of CLE programs (see generally 22 NYCRR 1500.4[c]), we note that a full-time judge must, at a minimum, ensure that the time commitments and other responsibilities of an accredited provider do not interfere with full-time judicial duties (see 22 NYCRR 100.3[A]) and avoid even the appearance of being engaged in impermissible commercial activities (see 22 NYCRR 100.4[D][3]) and/or the practice of law (see 22 NYCRR 100.4[G]).