Opinion 98-105

September 10, 1998

Note: Please review Opinion 18-41 and seek further guidance from the Advisory Committee before relying on this opinion.  

Digest:         A judge may attend a STOP-DWI law enforcement conference, provided that the fee for the judge's attendance is paid by the judge and not by the STOP-DWI Program.

Rule:            22 NYCRR 100.1; 100.2(A); 100.4(A)(1); Opinions 96-105 (Vol. XIV); 95-46 (Vol. XIII); 95-37 (Vol. XIII); 93-95 (Vol. XI); 91-124 (Vol. VII).

Opinion:

         The coordinator of a county STOP-DWI program has invited the local judges in the county to attend a STOP-DWI law enforcement conference. As stated in the notice, the "conference is for police officers, prosecutor and judges on enforcing DWI laws ..." and is intended to enable the participants "to coordinate their roles and strengthen any weakness as they interact ...." The coordinator goes on to state that the "cost of the program is a $20 registration fee which I will provide STOP-DWI funds to pay for any magistrate who wishes to attend." A town judge asks "whether attendance at this type of function is permissible."

         In a number of opinions, the Committee has examined a variety of situations which required consideration of the permissible degree of connection between a judge and a STOP-DWI program. Such concerns arise because the fines imposed in DWI cases are a partial source of funding for such programs. Thus, the Committee has stated that a town judge should not chair and organize a STOP-DWI program seminar. Opinion 95-46 (Vol. XIII). Nor should a part-time judge serve simultaneously as the administrator of a STOP-DWI program (Opinion 93-95 [Vol. XI], also 95-37 [Vol. XIII]), or on the advisory board of the program. Opinion 91-124 (Vol. VII). Further, a judge should not permit the court to participate in a STOP-DWI program intended to facilitate the collection of DWI fines. Opinion 96-105 (Vol. XIV).

         In each instance, the degree of connection between the judge and the program was deemed to "cast doubt on the judge's capacity to act impartially as a judge" in DWI cases, in violation of section 100.4(A)(1) of the Rules Governing Judicial Conduct, and called into question the independence of the judiciary, thus contravening section 100.1 of the Rules.

         This does not mean, however, that a judge is forbidden to attend such programs and seminars. Judges often attend similar programs sponsored by national or local organizations of defense attorneys or prosecutors without having their independence or impartiality called into question. Thus with respect to this particular program it is not mere attendance that is in issue. Rather, the difficulty arises from the fact that the fee for attendance is being paid by the STOP-DWI program. In effect, if not in actuality, a benefit is being bestowed upon the judge, in whole or in part, from the use of funds whose origin is the court itself. In the view of the Committee, this surely constitutes an appearance of impropriety if not an impropriety itself and can only weaken "public confidence in the integrity and impartiality of the judiciary." 22 NYCRR 100.2(A).

         It is, therefore, the opinion of the Committee that a judge may attend the program provided that the fee for attending is paid by the judge and not by the STOP-DWI program.