Opinion 87-28(a)

January 28, 1988

Topic:          Attendance at D.W.I. Update training seminars prepared and presented by a County District Attorney’s office expressly for judges in that county.

Digest:         It is inappropriate for judges, including part-time lay judges, to attend a training seminar on D.W.I. prepared and presented by the County District Attorney’s office expressly for the judges in that county before whom members of the District Attorney’s office will appear in their capacities as prosecutors of such cases and others.

Rules:          100.2(a) and (c) ; 100.3(4)

Opinion:

          A Town Justice, asks whether it is proper for part-time lay judges to attend a training update seminar on D.W.I., which is being given by the County District Attorney’s office for all judges in that county. The proposed program as set forth in the letter of invitation is clearly designed from the prosecutor’s vantage and will include demonstrations of breathalyzer equipment by police officers. The invitation also notes the new policy of the D.A.’s office with respect to recommendations to the courts as to penalties to be imposed in the event a defendant refuses to submit to breathalyzer or blood tests to “assist in deterring the practice of refusing, which in effect deprives the police and prosecutors with (sic) evidence” and further sets forth other sentence recommendations policies of the office.

         The judge making the inquiry notes that the instructors at the seminars will be the very Assistant District Attorneys who will also be prosecuting cases before those judges and he manifests concern both with how this will look to the public as well as the potential for untoward reliance by these justices upon the advice and counsel of the Assistant District Attorneys stemming from their roles as instructors.

         These apprehensions are well-founded. Impartiality is an indispensable component of our system of justice and, accordingly, judges are at all times required to conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary and no judge shall convey or permit others to convey the impression that they are in a special position to influence him or her (Sec. 100.2(a) and (c) of the Rules of the Chief Administrator). For judges to attend and participate in a seminar wholly sponsored and presented by an office whose members appear daily before the very judges whom they are seeking “to instruct” with respect to cases in which they occupy a partisan role would severely undermine both the perception and reality of impartiality.

         Moreover, a seminar of this type also would appear to fall within the proscription of Rule 100.3(4) against considering ex-parte or other such communications concerning a pending or impending matter. While it may be assumed that the seminar would not address any actual currently pending cases, a partisan presentation with respect to the treatment to be accorded to a specific category of cases would be akin to preliminary ex-parte communications regarding cases of this type which are subsequently brought before the judges who have already been exposed to partisan conditioning by way of an “educational seminar”.

         Nor can one ignore the realities of a broader symbiotic relationship, with the lay justice becoming increasingly dependent upon the prosecutor’s “expertise”, which can be expected to develop from the prosecutor-instructor judge-student roles during the seminar.

         The inescapable conclusion is that justices should not attend the judicial education program given by the District Attorney’s office.