Opinion 23-148
December 14, 2023
Digest: A judge who presides in civil matters may participate in a university-sponsored educational program at a correctional facility in another region of the state.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 23-02; 20-31; 16-22; 15-47; 14-93; 13-34; 12-126; 10-97; 09-73; 92-05.
Opinion:
A full-time judge who presides in a civil part has been invited to participate in their undergraduate alma mater’s initiative to make rigorous academic programming available to incarcerated persons. The program’s students are incarcerated in a different region of the state, outside the jurisdiction of the judge’s court. The judge asks if it is ethically permissible to give a virtual guest lecture, teach a semester virtually, visit the prison as a guest speaker, or provide a video testimonial. According to the program’s website, the university administers degree-granting college programs at certain prisons entirely free of charge to the incarcerated students.[1]
A judge 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]). While a judge may “speak, write, lecture, teach” and otherwise engage in permissible extra-judicial activities (22 NYCRR 100.4[B]), the judge’s judicial duties must “take precedence” (22 NYCRR 100.3[A]). Thus, a judge’s extra-judicial activities must not be incompatible with judicial office and must not cast reasonable doubt on the judge’s capacity to act impartially, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).
We have recognized that “the community benefits from having judges take an active part in community affairs whenever possible” (Opinion 90-25). Among many other permissible teaching activities, we have advised that a full-time judge may serve as an adjunct law professor for a private university (see Opinion 92-05), may teach an evening class in paralegal studies at a local community college (see Opinion 10-97); and may teach an ethics course at a private, not-for-profit university’s school of law (see Opinion 09-73).
Some limitations apply, especially where the participants are likely to appear or have appeared before the judge (see Opinions 16-22 [judge may not participate in a prison ministry program where inmates sentenced by the judge may be present in the program’s group sessions]; 15-47 [treatment court judge may not participate in an exercise program together with treatment court participants]; 13-34 [judge who presides in a criminal part may not lecture at an anti-violence program at a local correctional facility, where the detainees are awaiting disposition of an unresolved case or awaiting sentence]). For example, where the detained or incarcerated audience members “could include defendants who will appear before the judge after the proposed presentation” (Opinion 13-34), we identified several risks:
from the perspective of an individual who hears the judge’s anti-violence presentation while he/she is detained at a local correctional facility, and who is then brought before the same judge for a hearing of the charges against him/her, it may seem reasonable to question the judge’s impartiality. . . . In addition, as the audience members could include defendants who will appear before the judge after the proposed presentation, the judge would be speaking to defendants without their lawyers being present. Thus, there is a risk that the judge would, inadvertently, be engaging in impermissible ex parte communications. Finally, it is not unlikely that an audience member could misinterpret some aspect of the judge’s presentation as applying to his/her particular case, and challenge the judge’s decisions on that basis during subsequent court proceedings.
Here, by contrast, the concerns outlined in Opinion 13-34 are unlikely to arise, because the inquiring judge presides in civil cases and the correctional facility is in another region of the state. We conclude that the inquiring judge may teach in the university’s program for incarcerated students, whether in person or virtually or by video recording.[2]
In doing so, the judge must abide by generally applicable limitations on judicial speech and conduct, including the public comment rule (see 22 NYCRR 100.3[B][8]; Opinion 20-31). If the judge is teaching a regular course of study, an academic exception provides some latitude to discuss pending or impending cases outside the judge’s jurisdiction (see e.g. Opinion 23-02). Nonetheless, we have said “judges should refrain from making gratuitous and unnecessary, controversial statements about pending cases, and they should avoid any discussion of cases pending within the general jurisdictional locale of their court” (Opinion 12-126). We cannot comment on the substance of any such proposed lecture, course, or video testimonial, as it was not described to us.
Finally, to minimize the risk of possible conflicts, the judge should reach out to the program’s organizers in advance and review the roster of students to see if any individuals who have appeared or are likely to appear before the judge are enrolled in the program (see Opinion 16-22 [advising that a judge may not interact with incarcerated persons absent a mechanism to exclude those serving sentences the judge had overseen]).
[1] The program charges no tuition or fees, and furnishes all necessary course materials.
[2] While the inquiry does not explain the term “video testimonial,” we have previously advised that a judge may participate in their college alma mater’s recruitment efforts by participating in a video recording in which the judge will discuss memories of the college and its impact on his/her career and provide a message to new graduates (see Opinion 14-93).