Opinion 96-128

December 12, 1996

Digest:         A judge (1) may not hold a conference with members of the local county criminal defense bar to discuss the judge’s philosophy concerning various criminal law issues; (2) may provide affidavits of fact to be used in pending court proceedings in matters the judge handled before assuming judicial office.

Rules:          New York Constitution, Art. 6, §20(b)(4); 22 NYCRR 100.2(A) and (C); 100.4(G); Code of Judicial Conduct , Canon 5(F). Opinions 92-55, Vol. IX; 91-137, Vol. VIII.

Opinion:

         The inquiring judge raises three matters for consideration by the Committee.

         First, the judge, who has been invited by the local county criminal defense bar to discuss with them his/her philosophy relating to the appropriate disposition of certain criminal matters, asks whether he/she can partake in such discussion. The letter says that prosecutors and defense lawyers would be invited to attend and that knowledge by the defense bar of the judge’s philosophy would be helpful “[to avoid instilling] unrealistic expectations in [their] clients”. The letter also states that the members of the defense bar would be interested in discussing their concerns about conferencing cases before the local court loses jurisdiction.

         Section 100.2(A) of the Rules Governing Judicial Conduct provides that judges avoid impropriety and the appearance of impropriety in all their activities and, are required to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. It is the opinion of the Committee that, here, the defense bar is attempting to find out the type of sentences the judge would impose upon defendants based on their having committed certain specific crimes. Since the prosecuting and defense counsel would be attending the meeting with the judge, we believe that such a meeting would raise the appearance of impropriety as the judge might, consequently, be giving the appearance of deciding cases on something other than their individual merits. This, in the Committee’s opinion, would not promote confidence in the impartiality of the judiciary. Therefore, the judge should not attend the requested conference.

         The other two inquiries are similar in nature and they both involve matters the judge handled prior to ascending to the bench. In the first, which deals with a contested estate matter which is still pending, the inquiring judge served as attorney for the estate. The judge now presiding over the case has requested from the attorney currently representing the estate an affidavit by the inquiring judge detailing the services rendered, the dates rendered, the amount of time expended, etc. The second involves a matter the inquiring judge handled while serving as district attorney and in which charges against an accused, who is now suing for false arrest, were dismissed. The attorney representing the county is seeking an affidavit from the inquiring judge explaining why the charges were dismissed.

         The New York State Constitution (Art. VI, §20[b][4]) , the Code of Judicial Conduct (Canon 5[F]) and the Rules Governing Judicial Conduct (§100.4[G]) prohibit full-time judges from engaging in the practice of law. Regarding the estate matter, it is the Committee’s opinion that furnishing an affidavit regarding the services the inquiring judge provided prior to becoming a judge does not constitute engaging in the practice of law and there is nothing ethically impermissible in providing such an affidavit.

         As to the suit for false arrest, section 100.2(C) of the Rules provides, in pertinent part, that a judge shall not testify voluntarily as a character witness. There is, however, no prohibition against testifying as a fact witness. Here, the inquiring judge is not being asked to testify as a character witness, but merely to provide an affidavit as to the factual situation surrounding the decision he/she made as district attorney to dismiss criminal charges against a suspect. Therefore, the Committee sees nothing ethically impermissible in providing the requested affidavit (See, Opinions 92-55, Vol IX; 91-137, Vol VIII) .