Opinion 23-33

March 23, 2023

Digest:         A full-time judge may mentor applicants seeking to obtain a nomination to one of the nation’s military service academies.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(B); 100.4(A)(1)-(3); Opinions 22-55; 21-62; 20-55; 16-124; 16-34; 14-181; 12-22; 05-140; 99-21.

Opinion:

         The inquiring full-time judge is a military veteran and a former member of a local congressperson’s military academy nominating board.¹ The judge asks if it is ethically permissible to privately mentor potential military academy nominees to enhance their prospects of securing a nomination. The judge proposes to provide applicants with an overview of the application process and to answer questions that arise, offer suggestions how to navigate the application process, explain common mistakes to avoid and how to formulate answers to questions at the interview, stage a mock interview with sample questions, provide advice on how to present themselves before the nominating committee, and, if nominated, describe what to expect at the academies. All mentoring activities would take place without charge on the judge’s own time in a private setting. The judge will have no relationship with the nominating board and will neither advocate on behalf of any applicant nor make any recommendations, orally or in writing, in support of an applicant.

         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]). A judge may generally speak, write, lecture, teach and participate in extra-judicial activities, subject to all applicable limitations in the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). For example, a judge may participate in extra-judicial activities that are not incompatible with judicial office and do 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]).

         We have previously advised that a judge may serve as a mentor in a variety of circumstances. For example, a judge may mentor foster youth through a city agency (see Opinion 22-55); may mentor high school students through a program organized by a not-for-profit chamber of commerce (see Opinion 20-55); may mentor a high school student through a not-for-profit mentorship program (see Opinion 16-124); may participate as a panelist and mentor in a philanthropic, non-commercial luncheon for young minorities (see Opinion 16-34); and may mentor formerly-incarcerated individuals returning to society, where the mentees are unlikely to appear before the judge and other conditions are met (see Opinion 05-140). In each of these opinions, we were satisfied that the mentorship was not likely to create an appearance of impropriety or involve the judge in impermissible activities (cf. Opinion 14-181 [judge may not serve as mentor for a teenager who recently appeared before the judge as the respondent in a truancy proceeding]).

         In a similar vein, we have advised that a judge may serve on the board of a not-for-profit organization that provides mentoring services to students (see e.g. Opinions 12-22 [a judge may serve as officer or director of a non-profit organization that seeks to help high school students become responsible citizens by educating them about the law]; 99-21 [a judge may serve on a board which seeks to prevent juvenile delinquency, where the organization is unlikely to be involved in litigation of any kind]).

         Here, the mentorship proposed by the inquiring judge is designed to equip young adults from diverse socio-economic backgrounds with effective strategies that may help them qualify for an appointment to a military service academy. The judge will not serve on or communicate with the nominating board, including advocating or making recommendations on behalf of a potential nominee. As we can see no impropriety in the proposed activity as described, we conclude it is ethically permissible.

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¹ On becoming aware of Opinion 21-62, the judge resigned from the board before assuming full-time judicial office.