Opinion 23-92
September 7, 2023
Digest: A city court judge whose caseload may include criminal matters may attend meetings of local not-for-profit neighborhood/community groups as a guest speaker. At such meetings, the judge (1) should not speak about the root causes of violence and potential solutions through the lens of the judge’s past and current professional experiences but (2) may otherwise discuss a variety of legal topics, including court procedures, the judge’s professional career and judicial role, and governing law, subject to generally applicable limitations on judicial speech and conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(G); Opinions 22-160; 21-134; 20-131; 17-148; 17-12; 15-113; 13-13; 11-134; 07-125; 07-52; 02-02; 89-68; 88-106.
Opinion:
The inquiring full-time city court judge, who previously held other roles in city government before assuming judicial office, is “frequently asked to attend local neighborhood meetings” to talk about the judge’s judicial role and the issue of crime in the city. We understand such meetings are organized by local not-for-profit community groups and are held in locations that will be open to the public.[1] Accordingly, the judge asks if it is ethically permissible to address the following topics at local community meetings:
1. addressing “what the current laws enable [judges] to do and restrict [judges] from doing when it comes to dealing with individuals who have been found guilty of a crime” and “what is changing for judges” after certain amendments go into effect;
2. describing “current changes to the NYS bail law” and “what factors a judge can now consider when setting bail;”
3. answering “process questions” about “what happens at arraignment, jury service and selection, [and] trials;”
4. addressing the difference between the judge’s current judicial role and the judge’s prior roles in other branches of government;
5. addressing the “broader issue” of the causes of (and solutions to) violence in the city, “through the lens of [the judge’s] past and current professional experiences.”
A judge must always avoid 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 full-time judge may speak, write, lecture, teach and participate in extra-judicial activities, subject to all applicable limits in the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). For example, a judge’s extra-judicial activities 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 and are not incompatible with judicial office” (22 NYCRR 100.4[A][1]-[3]). A judge must not publicly comment on pending or impending proceedings in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]) or lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). In addition, a full-time judge may not practice law (see 22 NYCRR 100.4[G]).
We have “recognized that the community benefits from having judges take an active part in community affairs whenever possible” (Opinions 13-13; 15-113). Of course, a judge must not participate in community efforts, “no matter how laudable, if the judge’s participation would conflict with the judge’s judicial duties, cast doubt on the judge’s ability to be impartial, or otherwise cause the judge to violate the Rules Governing Judicial Conduct” (Opinion 13-13). Subject to such caveats, we conclude a full-time judge may attend meetings of local not-for-profit neighborhood/community groups as a guest speaker, provided that the judge does not comment on pending or impending matters in the United States or its territories and is “careful not to offer legal advice or to promote a particular point of view or support one side in a particular class of cases” (Opinion 17-148). In general, “[t]he judge’s presentation should be factual and instructive about the procedures and parameters of the particular subject” (Opinion 88-106).
Of the five topics here, the most problematic is the judge’s proposed discussion of the causes of (and solutions to) violence in the city, “through the lens of [the judge’s] past and current professional experiences.” Discussions regarding the root causes of violence and its solutions are likely to be highly political and/or controversial and as such, may cast doubt on the judge’s ability to be impartial (see Opinion 22-160 [“questions about how to end gun violence in America are intensely partisan and political” and “could ‘create an appearance of particular sympathy toward one side in court’ and necessarily cast doubt on the judge’s ability to be impartial”]). This is particularly so where, as here, the speaker is a city court judge who may handle criminal matters, including misdemeanors involving violence (see Opinion 07-52 [noting that a city court judge’s proposed involvement in the city’s anti-crime program could raise reasonable questions about the judge’s impartiality, where a related law enforcement subcommittee “responds to emerging crime problems” within the geographical jurisdiction of the judge’s court]). For these reasons, we conclude the judge should not address this topic at neighborhood/community meetings.
By contrast, the first two topics, addressing a judge’s powers and limitations with respect to a convicted defendant and the factors a judge may consider when setting bail, are generally permissible as matters related to the law, the legal system and the administration of justice (see Opinions 11-134 [full-time judge “may address a local school board’s suspension policy committee regarding court procedures and ways in which the court’s orders could intersect with a school’s suspension policy,” but may not provide legal advice to the committee]; 89-68 [town justice may write a newspaper article “explaining new provisions of law involving fines and surcharges relating to vehicle and traffic matters”]). In discussing such matters, a judge must take particular care to ensure that the commentary “does not cause doubt as to the [judge’s] capacity to decide impartially any issues that may come before” the judge (see id.).
With respect to addressing “process questions” about “what happens at arraignment, jury service and selection, [and] trials,” we note that a judge may explain “for public information the procedures of the court” (22 NYCRR 100.3[B][8]; see also Opinions 21-134 [judge may inform local residents about the jurisdictional reach of the judge’s court and the types of cases it handles]; 07-125 [judge may host a court tour and explain court procedures]; 02-02 [judge may be a credited source of information in a newspaper article about “the jurisdiction and workings” of the judge’s court]). Thus, the third topic is also permissible.
Likewise, we see no impropriety in discussing the judge’s career path and differences between the judge’s current judicial role and the judge’s prior roles in other branches of government (see e.g. Opinions 20-131 [judge who was former prosecutor may speak to group of employees at prosecutor’s office about the judge’s experience as a prosecutor and the judge’s career path]; 17-12 [judge may speak to not-for-profit religious organization about background and experience in becoming a judge]).
Accordingly, we conclude that the judge may discuss the first four proposed topics, concerning governing law, court procedures, and the judge’s professional career and judicial role, subject to generally applicable limitations on judicial speech and conduct.
[1] The illustrative example in the inquiry was organized solely by the board of directors of a neighborhood coalition and was to be held outdoors on the premises of a local religious institution.