From Advisory Committee on Judicial Ethics: Opinion 07-188 (Oct. 18, 2007)

[Originally published NYPRR April 2008]

From time to time, NYPRR will publish an Opinion of the Advisory Committee on Judicial Ethics. The Opinions published are those selected by Justice George D. Marlow, Committee Chair, and Jeremy R. Feinberg, who serves among the Committee’s Counsel.

The Advisory Committee on Judicial Ethics (www.nycourts.gov/ip/acje) responds to written inquiries from New York State’s full- and part-time judges, candidates for elective judicial office, and quasi-judicial officials such as support magistrates, court attorney-referees, and judicial hearing officers.

The committee’s opinions interpret the Rules Governing Judicial Conduct [22 NYCRR Part 100], the Code of Judicial Conduct and Part 36 of the Rules of the Chief Judge [22 NYCRR Part 36]. Justice George D. Marlow chairs the committee of 26 judges, and Maryrita Dobiel, Esq. is its Chief Counsel.

Opinion 07-188 (Oct. 18, 2007)

DIGEST: Judges may attend meetings with lawyers to discuss the functioning and improvement of the court system, even when those lawyers are actively and directly involved in matters before those judges. The judges should not discuss any pending or impending matters or engage in ex parte communications involving matters before them, and should limit discussions to administrative issues only, unless all relevant interests are given an opportunity to be heard.

RULES: 22 NYCRR 100.2(A); 100.3(B)(6), (8); 100.3(C)(1); 100.3(E)(1); 100.4(C); Opinions 07-15; Joint Opinion 06-154 and 06-167; 06-126.

OPINION: An administrative judge, on behalf of the judges within his/her constituency, seeks clarification of Opinion 07-15 as that opinion applies to meetings with lawyers and judges about how the court system functions and how it can be improved. These meetings do not address specific cases within the court system. Instead, in the ordinary course of court business, they provide feedback from those who use the courts on a regular basis.

The inquirer explains that judges invited to these bench-bar meetings are reluctant to attend, and sometimes refrain from doing so, if they have a matter sub judice involving one of the lawyers (or, in the case of in-house counsel, involving that lawyer’s employer). The inquirer asks whether judges may attend these administrative meetings even when such lawyers are present and participate.

In Opinion 07-15, this Committee addressed whether trial and appellate court judges could host “brown bag luncheons” to discuss issues of law and practice with members of the bar, where some of those bar members were members of organizations (such as The Legal Aid Society, District Attorneys, or Corporation Counsel) who consistently have matters pending before the courts. The Committee concluded that attorneys whose offices regularly had business before the courts could be invited. Individual attorneys “actively and directly involved” in particular matters sub judice before a judge participant, however, should not be invited. [Opinions 07-15; 06-126.]

The involvement of judges in the administrative process is critical to the effective functioning of our judicial system. In fact, the Rules Governing Judicial Conduct specifically encourages judges to become involved in extra-judicial activities that concern the law, the legal system and the administration of justice. [22 NYCRR 100.4(C); see also 22 NYCRR 100.3(C)(1).] A key goal of the bench-bar discussions that are the focus of this inquiry is to encourage frank disclosure and discussion of administrative difficulties or successes, concerns and recommendations, by attorneys who frequently litigate in the court system.

The importance of an active dialogue between judges and lawyers regarding improvement of the courts sufficiently distinguishes the situation presented here from the programs involving general discussions of law and appellate practice we addressed in Opinion 07-15. Accordingly, we conclude that it is appropriate — indeed necessary — for judges to attend and take part in these discussions, even when there are lawyers present with active and direct involvement in matters before the judge, subject to certain restrictions set forth below.

First, the traditional limitations on judicial speech are, of course, applicable here. Attending judges should avoid discussing any pending or impending matters or demonstrating any predisposition to deciding a specific case(s) a specific way. [22 NYCRR 100.2(A); 100.3(B)(8).] Similarly, they should not allow any ex parte communications concerning any matter pending before the court. [22 NYCRR 100.3(B)(6).]

Second, in order to avoid casting any doubt on the judge-participants’ impartiality [22 NYCRR 100.4(A)(1)], these meetings should normally be balanced among lawyers representing all interests before the court. [Joint Opinion 06-154 and 06-167.] If this is not practical, the judges attending should either (i) limit the discussion purely to administrative matters and not address substantive or procedural issues that would provide one side with a procedural or tactical advantage; or, (ii) afford all other absent interests the opportunity to be heard. [Id.]

Finally, notwithstanding the Committee’s conclusion, a judge who feels that his/her ability to remain fair and impartial will be compromised by attending such meetings should refrain from attending. [22 NYCRR 100.2(A); 100.3(E)(1).]

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

NYPRR Editor