September 10, 2020
Digest: A judge who was formerly a prosecutor may speak to an ethnic/cultural affinity group, made up of employees at the prosecutor’s office, about the judge’s experience as a prosecutor, the judge’s career path, and the court system’s adaptation to virtual operations.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(D); 100.3(B)(8); 100.3(B)(9)(a)-(b); 100.4(A)(1)-(3); 100.4(B); Opinions 20-84; 20-31; 19-100; 17-163/18-03/18-21; 17-12; 15-171; 15-133; 12-44; 11-83; 96-82; 96-44.
A full-time judge who was formerly a prosecutor and now presides over criminal cases asks if he/she may speak to current legal and non-legal employees at the prosecutor’s office, all of whom belong to an ethnic/cultural affinity group, about the judge’s experience as a prosecutor, the judge’s career path, and the court system’s adaptation to virtual operations. When discussing the prosecutorial experience, the judge expects to be asked to identify the cases that were most significant and that he/she most enjoyed handling as a prosecutor and whether there is “one that you still think about.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may lecture, teach, and otherwise participate in extra-judicial activities not incompatible with judicial office which do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-; 100.4[B]). A judge may not comment on any proceeding pending or impending in any court within the United States or its territories (see 22 NYCRR 100.3[B]) and must not make pledges, promises, or commitments inconsistent with the impartial performance of the adjudicative duties of judicial office (see NYCRR 100.3[B][a]-[b]). A judge may be a member of “an organization … dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]), but not one “that practices invidious discrimination” (id.).
The topics about which the judge proposes to speak are generally permissible (see e.g. Opinions 19-100 [judge may speak about his/her judicial experience at a legislator’s non-partisan, non-political youth meeting]; 17-12 [judge may speak to religious organizations about his/her background and experience, encouraging pursuit of a legal career]; 17-163/18-03/18-21 [judge may be interviewed about his/her educational background, professional experience, and community service]; 15-133 [judge may speak at a foreign consulate about his/her personal experiences in becoming a jurist]; 96-44 [judge may explain the procedures and operations of the court at a sheriff’s department training program]).
Indeed, we have suggested a judge’s remarks about his/her prior prosecutorial experience are unlikely to cast reasonable doubt on his/her ability to be fair and impartial as a judge “if (for example) the judge speaks about his/her prosecutorial activities in the past tense or otherwise distinguishes between his/her past and present roles” (Opinion 17-163/18-03/18-21). However, if the judge wishes to discuss specific prosecutions that were particularly significant, enjoyable, or memorable, the judge must also be mindful that he/she is prohibited from commenting on a case that remains pending or impending in any respect (see 22 NYCRR 100.3[B]; Opinion 20-31 [noting a matter remains pending or impending “if any appeal, collateral proceeding, parole hearing, or other proceeding in the case is pending or likely”]).
As described, the sponsoring affinity group, though associated with one ethnic or cultural group, does not invidiously discriminate (see Opinion 96-82 [describing considerations]). Rather, it is devoted to the professional development, recruitment, and retention of its members, “with no suggestion of exclusionary practices” (Opinion 15-171). Thus we see no impropriety in the judge speaking to an affinity group “dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]).
That the audience will be limited to employees of the prosecutor’s office does not necessarily bar the judge’s participation (see Opinion 12-44). Indeed, so long as the judge takes “particular care that his/her topic will not compromise the judge’s apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way,” it may “benefit the public interest when an organization that is involved in litigating only one side of an issue is exposed to the type of broad and nuanced perspective that a judge can offer” (id. [citations omitted]). Accordingly, a judge may speak to a group consisting only of prosecutors so long as the judge avoids any perception that he/she is providing advice on litigation strategy or tactics (see Opinion 11-83 [judge may give ethics presentation at prosecutors’ training session]).
Since the judge is “unlikely to run afoul of this prohibition” if he/she adheres to the planned discussion topics (Opinion 20-84), we conclude the judge may participate in the proposed event, subject to the above limitations and other generally applicable limitations on judicial speech and conduct.