Opinion:

          A supervising judge asks about two initiatives designed to further judicial education using certain extra-judicial resources.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge also must not “lend the prestige of judicial office to advance [any] private interests” nor allow anyone to convey the impression that they “are in a special position to influence the judge” (22 NYCRR 100.2[C]).

1. Scholarly Outline

          The supervising judge would like to distribute “a substantial outline (more than 100 pages)” to the judges he/she supervises concerning counsel fees in their specialized civil practice area.  The outline is the work product of an attorney in private practice, rather than a professional academic, but the attorney makes it freely available.  For example, the outline has already been included in program materials at the Judicial Institute and at continuing legal education programs.  Still, the judge recognizes that the attorney may make counsel fee applications in specific cases and wishes to avoid any appearance of an impermissible “endorsement of [the attorney’s] scholarship.”

          Although judges generally may not promote private interests (see e.g. Opinions 09-174 [endorsing for-profit telephonic court appearance service]; 98-98 [promoting paid attorney enrollment in legal referral service]), we note that the outline’s author prepares and circulates the outline without charge, including at legal education programs. 

          We also distinguish Opinion 15-148, which involved a “periodic compilation of recent cases” in a legal area pertinent to the judge’s specialized court, prepared by an attorney at an indigent legal services entity which represents “one ‘side’ of litigants” in that area.  The inquiring judge had previously subscribed to the email list while employed with a legal services provider, and considered it “an invaluable research tool.”  As we explained (id. [footnote omitted]):

The author does not publish his/her compilation or otherwise make it available to the general public or all members of the bar, but instead distributes it only to his/her own legal services colleagues and others who represent the same “side,” along with commentary and advice for similarly situated attorneys.  In these circumstances, the list appears to be a tool or resource made for the benefit of only one side appearing before the court.  Indeed, this judge’s access to the compilation derives solely from his/her prior employment as an advocate for that side.

Under those circumstances, we concluded the judge may not remain on the distribution list, or forward the compilation to other judges or court personnel, “as it could impermissibly convey an impression [the judge’s] former colleagues are in a special position to influence” the judge and even potentially “undermine public confidence in the judge’s impartiality” (id.).

          The outline here, by contrast, has already been distributed to judges and attorneys at a variety of legal education programs.  Nothing in the inquiry suggests that attorneys seeking counsel fees in this specialized area are associated with only one “side.”  Indeed, as described, we understand that the outline appears to be impartial in its treatment of the subject matter.  Under the circumstances, we see no ethical impropriety in the supervising judge circulating the outline to other judges.

          Given the inquiring judge’s concerns, we suggest, but do not require, that he/she include a message reminding recipients that circulating the outline is not an endorsement of the attorney or the attorney’s scholarship.

2. Lunch and Learn

          As part of an ongoing “lunch and learn” program for judges and court personnel, the inquiring judge asks if it is ethically permissible to include outside speakers to address various subjects of interest to the participants.  Speakers will be chosen by the supervising judge with suggestions from the attendees encouraged.  Some speakers may be practicing attorneys, while others may have testified as expert witnesses.  All are uncompensated.  The presentations are informal, and attendance is voluntary.

          We have advised that a judge may organize and co-sponsor a continuing legal education program regarding family violence that “involves information of general application to the area of Domestic Violence and will address both victim and offender-oriented issues” (Opinion 10-166).  We noted “the proposed speakers include defense attorneys, prosecutors, children’s lawyers and social workers, who represent the various constituent groups involved in Domestic Violence issues” (id.).  Conversely, we have advised that judges should not participate in educational programs so one-sided that they give an appearance of partiality (see e.g. Opinions 18-41 [Ignition Interlock Monitor training program “will address post-conviction sentencing compliance enforcement, the faculty expressly excludes defense perspectives, and the defense bar has not been invited to attend”]; 09-127 [legal education program for students “sponsored solely by a district attorney’s office”]).

          In hosting an informal and voluntary “lunch and learn” program for judges and court personnel, the supervising judge should balance the content of the overall program and select a variety of speakers who represent the various constituent groups involved in the judge’s specialized practice area.¹  Speakers who routinely testify in court as experts for only one side of any issue should be avoided (see Opinion 14-20).  With these provisos, we conclude the proposed program is permissible.

1 While the content of any specific session need not necessarily present all viewpoints, the judge should be mindful of the need to achieve balance over time.  For example, if some presentations focus on crime victims and prosecution perspectives, then other presentations might focus on defense counsel perspectives.