Opinion 25-24

February 6, 2025

Digest:   Subject to generally applicable limitations on speech and conduct, a judge has discretion to inquire about and ultimately engage a student intern who has made public comments which would be inappropriate if made during the internship.

Rules:    22 NYCRR 100.2; 100.2(A)-(B); 100.3(B)(8); 100.3(C)(2); 100.5(A)(1); 100.5(C); Opinions 18-78; 17-38; 14-48; 13-80; 96-04.

Opinion:

          The inquiring judge is considering a college student’s application for an unpaid summer internship.  The student has a good reference from a professor but has published “many provocatively political letters” in a local newspaper.  The judge is concerned that the most recent letter publicly supports a politician and may reflect misunderstanding and/or mistrust of the legal system.  The judge asks if he/she may (1) refer to that recently published letter when interviewing the student, (2) discuss the situation with the referring professor, and/or (3) consider the student’s published statements in making the hiring decision.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge may not allow political relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]), and must also prohibit members of the judge’s staff who are the judge’s personal appointees from engaging in specified political activities (see 22 NYCRR 100.5[C]).  Further, a judge must “require” staff and others subject to the judge’s direction and control to “observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]), refrain from public comment on pending or reasonably foreseeable proceedings in any court within the United States or its territories (22 NYCRR 100.3[B][8]), and refrain from manifesting bias or prejudice in performing their duties (22 NYCRR 100.3[C][2]).

          The decision whether to engage a student intern is within the discretion of the judge and does not generally raise ethical concerns.  Indeed, where the internship is unpaid, we have advised that the anti-nepotism rule does not apply (see Opinion 14-48 [judge may hire third-degree relative as unpaid intern]).  In our view, the judge has discretion to ask questions germane to the decision whether to engage the student as a summer intern, discuss him/her with a recommending professor, and consider any factors the judge thinks relevant to the engagement decision.  In so doing, the judge must of course abide by generally applicable limitations on judicial speech and conduct.  For example, the judge should be mindful that “it is absolutely necessary to maintain an impartial judiciary both in practice and perception” (Opinion 17-38) and refrain from inserting him/herself unnecessarily into the center of matters of substantial controversy (see Opinion 18-78).

          If the judge decides to engage the student, the judge should explain that summer interns are subject to ethical restrictions during their internship in order to maintain public confidence in the judiciary, including the public comment rule and limitations on political activity (see Opinion 96-04). 

          Finally, if any issues or matters relating to the student’s pre-internship comments come before the judge during the internship, the judge must insulate the intern and disclose the insulation to the parties (cf. Opinion 13-80 [judge must insulate and disclose when summer intern’s parent’s law firm appears]).