Opinion 23-27

March 23, 2023

Digest:         A family court judge may enter into a memorandum of understanding with an agency that provides a “safe haven” facility for free supervised visitation and safe exchange of children, where the agreement sets forth a general expectation that (1) the court will continue to make referrals as needed in appropriate cases and (2) the judge and court staff will participate in giving and/or attending appropriate domestic violence training along with a wide variety of other signatories. As the agreement does not purport to mandate specific training programs, the judge must exercise discretion and participate only when doing so will not create an appearance of impropriety or raise reasonable questions about the judge’s impartiality.

Rules:          22 NYCRR 100.1; 100.2; 100.2(C); 100.4(C)(3)(b)(i), (iii); Opinions 20-44; 17-146; 17-04; 16-95/16-107; 16-02; 15-26/15-44; 12-44; 06-72; 98-87.

Opinion:

         The inquiring judge, who serves in family court, regularly makes referrals to a particular not-for-profit agency “for any cases (criminal or civil) involving Domestic Violence or Sexual Assault.” In particular, the agency offers families a so-called “safe haven” facility for free supervised visitation and safe exchange of children. The agency is now applying for a grant to keep the facility in operation and wishes to enter into a memorandum of understanding with certain “partnering organizations” whose “ultimate goal is to protect victims of domestic violence.” The proposed partners include the agency itself, its domestic violence service provider arm, the family court, a judicial association, the district attorney’s office, the social services department, a not-for-profit counseling services entity, and a local not-for-profit community center. A supervising or administrative judge has advised the inquiring judge that “if it is ethically permissible, and you feel it is a positive program for the administration of Justice in [this] County, I have no concerns with your authority to sign it.” The judge asks if it is ethically permissible to enter into the proposed memorandum of understanding on behalf of the family court, given that the court would agree to:

1. Continue to “[r]efer appropriate cases and case information” to the agency, as it already does;

2. “Provide and participate in cross-training and coordinating local training for all community partners,” given that the judge or court staff might be expected to provide training to outside agencies such as the district attorney’s office, the social services department, a not-for-profit counseling services entity, and a local not-for-profit community center;

3. “Support the collaborative efforts of the [safe haven] project by allowing staff to attend relevant programmatic-related OVW sponsored training events.”¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), and must maintain the judiciary’s independence (see 22 NYCRR 100.1). Also, a judge must not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) but may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]).

         Initially, we note that the proposed memorandum of understanding is in support of the agency’s application for continued funding of a facility for free supervised visitation and safe exchange of children, to which the judge makes referrals. It is not in support of a “domestic violence advocacy program” or other advocacy project, which could call the judge’s impartiality into question (see Opinion 16-02). 

         As to the first item, it appears that the judge currently makes referrals to the agency in appropriate cases, and the memorandum of understanding merely sets forth an expectation that the judge will continue to do so, without purporting to interfere with the judge’s discretion or legal determinations in such matters. Accordingly, we see no appearance of impropriety in this item (see generally Opinions 16-95/16-107 [judge may write a letter supporting a not-for-profit organization’s grant application to assist crime victims, which describes the judge’s experience with the organization and is limited to objective facts]; 06-72 [judge may serve on Steering Committee established to make a comprehensive assessment of current practices involving sex offenders, but “cannot make an advance commitment to accept and implement the recommendations of the Steering Committee,” as doing so would “impinge upon the independence of the judiciary”]).

         As to the second and third items, which call for the judge and/or court staff to provide training to “all community partners” and to attend unspecified but programmatically “relevant” training events, the inquiring judge explains that no specific training has been proposed or requested. Because the judge does not know the exact topic(s) or composition of the audience, we can only provide very general guidance here.

         Clearly, a judge may participate in some training programs and workshops on topics such as domestic violence, abuse, or human trafficking, where the judge’s participation is unlikely to create an appearance of impropriety or call the judge’s impartiality into question (see e.g. Opinions 98-87 [attending domestic violence conference and lecturing on felony domestic violence part]; 20-44 [attending and speaking at non-profit agency’s elder abuse awareness conference, which is “primarily educational and preventative in nature”]; see also Opinion 15-26/15-44 [reviewing several categories of domestic violence related activities]; compare Opinion 17-146 [human trafficking conference “will focus primarily on helping identify and assist at-risk youth”] with Opinion 17-04 [human trafficking seminar “will focus primarily on strategies for effective prosecution”]). Indeed, even if the judge is asked to give a presentation to a “one-sided” audience (such as only prosecutors, or only law enforcement personnel), this does not necessarily render participation improper, provided the judge exercises caution to avoid the perception that they are providing partisan advice on litigation strategy or tactics (see Opinion 12-44).

         As the agreement does not purport to mandate specific training programs, the judge must exercise discretion and participate only when doing so will not create an appearance of impropriety or raise reasonable questions about the judge’s impartiality. Of course, if the judge has a question about permissibility of participating in a specific proposed educational program, the judge may request further guidance at that time.

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¹ We assume OVW refers to the U.S. Department of Justice’s Office on Violence Against Women (https://www.justice.gov/ovw) and /or its state or local counterparts.