Opinion 23-82
June 15, 2023
Digest: After a judge’s adult child has been convicted and sentenced, a judge may attend and participate in the child’s subsequent parole hearing, provided they do so in the obvious role of a parent and without reference to their judicial status or otherwise invoking the prestige of judicial office.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 22-76; 18-135; 18-74; 17-77; 16-33; 16-27; 15-124; 15-70; 12-169; 12-143; 10-188; 10-175; 07-178; 07-205; 06-156; 02-09; 99-07; 97-92; 89-73; 89-04.
Opinion:
A judge’s adult child[1] is serving a prison sentence in another jurisdiction and will soon be eligible for parole. The judge asks if it is permissible to attend the parole hearing and speak or write on behalf of the child at the hearing, if they do so solely in their capacity as a parent.
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 must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) or “testify voluntarily as a character witness” (id.).
Clearly, the judge may attend the parole hearing, assuming it is open to the defendant’s relatives and/or members of the public (see Opinion 12-143 [modifying prior opinions]). Indeed, in that opinion, we concluded that a judge “may attend criminal proceedings involving his/her 4th degree relative by blood or marriage (including a step-relative) provided the judge does not act as an attorney in the matter, does not have any ex parte contact with the judge presiding in the matter, and does not invoke his/her judicial office or otherwise lend the prestige of his/her judicial office for his/her relative’s benefit” (id.). Moreover, the judge may also serve as a housing resource for their relative on parole, as long as they do not use the prestige of judicial office to seek exceptions to the parole board’s procedures (see Opinion 17-77).
Yet it is equally clear that speaking or writing on behalf of a potential releasee or parolee would ordinarily be prohibited, absent either a subpoena or a request directly from the parole board or other appropriate governmental agency (see e.g. Opinions 18-135; 16-33; 16-27; 10-188; 06-156; 02-09; 99-07; 97-92; 89-73; 89-04). As explained in Opinion 16-33:
In prior Opinions the Committee has advised that the Rules Governing Judicial Conduct prohibit judges from providing character references, written or oral, on behalf of individuals who are the subject of proceedings involving alleged criminal or professional misconduct except when asked to do so directly by a tribunal, hearing officer, other governing body or official, or by subpoena. It is not sufficient that the individual involved or his/her legal representative requests the character reference.
Our core concern is that such intervention “could readily be perceived as using the prestige of judicial office to advance the private interests of another, and is akin to voluntarily testifying as a character witness” (Opinion 97-92; 22 NYCRR 100.2[C]). Of particular note, we have applied this same principle to a judge’s family member (see Opinion 16-33 [fourth-degree relative]). Indeed, where an inquiring judge received an “unsolicited letter” from a judge who was “related to the defendant,” in support of their relative’s “application for early discharge from probation,” we said the conduct must be reported to the Commission on Judicial Conduct (Opinion 10-175).
However, in another line of opinions, we have advised that “a person elected or appointed to judicial office does not forfeit his/her rights or responsibilities as a parent” (Opinion 07-178). Although a judge is not free to disregard the Rules Governing Judicial Conduct merely because they are acting in their parental capacity (see e.g. Opinions 22-76; 18-74), we have also recognized that “the special nature of the parent-child bond must be accounted for when addressing judicial ethics” (Opinion 12-169).
Significantly, in Opinion 12-169, we concluded that a judge may attend their child’s post-election victory reception, even though it is paid for with the child’s campaign funds and entirely separate from any induction ceremony, where (i) the event is not a fund-raiser, (ii) the judge’s child was unopposed in the election, and (iii) the judge’s attendance will be “in the obvious role of [a] parent” (Opinion 12-169, quoting Opinion 07-205).
Here, too, we think it is appropriate to carve out a narrow exception. Our understanding is that the presence or absence of family support for the potential releasee or parolee is a significant component of a release decision. To forbid a judge who is a parent from voluntarily participating in a parole hearing for their own child seems unnecessarily and unfairly punitive to that child. Accordingly, we conclude that a judge may attend and participate in their child’s parole hearing, provided they do so in the obvious role of a parent and without reference to their judicial status or otherwise invoking the prestige of judicial office. Subject to those restrictions, the judge may voluntarily speak or write on behalf of their child at the parole hearing, without first being subpoenaed or requested to do so by the parole board or other tribunal.
We emphasize that the judge must avoid any reference whatsoever to their judicial role or status, as this could be seen as an attempt to use the prestige of judicial office to influence the outcome of a family member’s case. Such conduct is a misuse of judicial prestige and is not in any way justified or excused by the parent-child bond (see e.g. Opinion 15-124 [reporting required where judge appeared with their child on a criminal case, identified him/herself as a judge, and reiterated their judicial status when confronted]). It also bears emphasis that the present inquiry involves a parole hearing; the judge is not seeking to participate at the time that their child’s guilt or innocence will be determined, but only after conviction, when the child is up for parole in the usual course (see Opinion 15-70 [reporting required where judge appeared with their child on a pending traffic ticket “in a purely family support role” but actively participated in a conference with the prosecutor, who “felt intimidated and uncomfortable” as a result, and the judge also “further attempted to improperly influence his/her relative’s case”]).
Prior opinions, including Opinion 10-175 and Opinion 16-33, are hereby modified as necessary to reflect that a judge may attend and participate in their child’s parole hearing, provided they do so in the obvious role of a parent and without reference to their judicial status or otherwise invoking the prestige of judicial office.[2]
[1] Our analysis here applies equally to a child or stepchild, whether or not formally adopted.
[2] In addition, a note will be added to Opinions 15-70 and 10-175 to specify the relationship between the judge and the defendant. In Opinion 10-175, the letter writer was the defendant’s third-degree relative, such as a niece/nephew, aunt/uncle, great-grandparent or great-grandchild.