Opinion 23-155
December 14, 2023
Digest: A judge may not accept an invitation as a keynote speaker for an event sponsored by a law center that is engaged in matters of substantial public controversy and whose mission focuses on supporting core political and executive branch functions.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.3(A); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); Opinions 17-70.
Opinion:
A full-time judge asks if it is permissible to accept an invitation to speak at an event organized by the Shurat HaDin Israel Law Center. The law center indicates that this is a non-fund-raising event, and part of a series featuring “highly accomplished professionals” from diverse fields such as “law, social activism, and governmental fields.” As the inquiring judge was unfamiliar with the sponsoring law center, the judge asked about its nature and purpose. The law center advised that it is non-political and non-profit, and its “main activities” include:
combating the global effort by Israel’s enemies to delegitimize, boycott and wage ‘lawfare’ against the Jewish State, stopping the flow of money to terrorists using civil suits and other legal means, leading the private sector’s war on terrorism and representing terror victims or their families, and training the next generation of attorneys and legal advocates to fight for the rights of the worldwide Jewish community and Israel.
The law center’s website further explains: “We are dedicated to protecting the State of Israel. By defending against lawfare suits, fighting academic and economic boycotts, and challenging those who seek to delegitimize the Jewish State, Shurat HaDin is utilizing court systems around the world to go on the legal offensive against Israel’s enemies.” At a time of war in the Middle East,[1] the topmost banner on the law center’s home page currently says:
“ISRAEL IS UNDER ATTACK
FIGHT BACK WITH SHD NOW”
A judge’s judicial duties “take precedence” over all the judge’s other activities (22 NYCRR 100.3[A]). A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), must not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). A judge’s extra-judicial activities, including speaking engagements, must be compatible with judicial office and must not (1) cast doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]).
Judges should not “publicly associate [themselves] with non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict” (Opinion 17-70 [italics omitted]). In that same opinion, we acknowledged that “religious convictions, like political convictions, may be very strongly held; indeed, they may go to the core of one’s sense of identity,” but we stated “there is no exception to the prohibition on political activity based solely on the strength and personal significance of one’s beliefs, as this would eviscerate the rule” (id. fn 1).
Here, it appears the main purpose of Shurat HaDin Law Center is to take legal action to protect and defend the State of Israel and its citizens. This may be publicly perceived as supporting core political and/or executive branch functions. In light of the ongoing war in the Middle East, and in an abundance of caution in avoiding the appearance of impropriety, we conclude this judge must not accept the proposed speaking engagement for the law center.
[1] According to the Washington Post, “Israel formally declared war against the Palestinian militant group Hamas on [October 8, 2023] as it reeled from a surprise attack that killed more than 700 people, opening the way for a major escalation in fighting that already threatened to engulf the region.”