Learning Corner: Educational and Reference Materials

As a pilot project, we are developing some educational/reference materials on selected topics. They are not intended to replace or modify any published opinions.

These pages are intended to serve as a starting point for research. They are not necessarily a comprehensive listing of all opinions on the topic. Please contact the Advisory Committee for guidance if your facts are not identical to a published opinion.

We welcome your feedback on this approach and format.

 

Subject-Matter Topics

These pages collect some opinions on a particular theme.

  1. Conflicts
  2. Disciplinary Obligations 
    • Chart: When Must a Judge Report a Lawyer (July 2021) - This chart lists prior opinions in which the Committee has mandated reporting (i.e., the only appropriate action was to report the lawyer) as well as certain other related materials.
    • Chart: When Must a Judge Report Another Judge (July 2021) This chart lists prior opinions in which the Committee has mandated reporting (i.e., the only appropriate action was to report another judge) as well as certain other related materials.
  3. Judicial Speech
    • Judicial Speech Primer (Mar 2018) - Intended to provide a starting point for understanding some of the most common limitations on judicial speech. Please note it does not address participation in public advocacy activities, where the outcome may be highly fact-specific.
  4. Extra-Judicial Activities
  5. Additional themes and topics

Miscellaneous Reference Materials

  • Part 100 Navigation Guide (May 2021) 
  • Ethics Reference Sheets (July 2021) - reference materials covering some common issues and recommendations regarding disqualification, ex parte communications, when to seek help, and more.
  • Dos and Don'ts chart (May 2017) - some simplified reminders, intended to help alert a judge when he/she may need to ask for guidance or clarification before engaging in certain activities.
  • Winding Down - Opinion Digests (July 2021) - a quick reference guide to help new full-time judges find potentially relevant opinions on selected issues related to winding down their law practice.

 

Some Coronavirus-Related Opinions

For ease of reference, here are some opinions starting in March 2020, touching on various aspects of the current public health crisis, including efforts to limit foot traffic in the courtroom by facilitating (or allowing others to facilitate) out-of-court plea negotiations in courts where prosecutors usually make plea offers in person in the courtroom.

  • Efforts to Facilitate Out-of-Court Plea Negotiations: 
    • Opinion 20-206 - court-provided plea reduction form. 
    • Opinion 20-152 - DA's new plea program in lieu of in-person plea negotiations.
    • Opinion 20-143 - coordination solely between police and prosecution to distribute prosecutor's plea offers to defendants; see Opinion 20-177 for a broader view of factors to consider.
    • Opinion 20-99 - communicating with defendant motorists about their options in VTL matters.
    • Opinion 20-97 - distributing a prosecutor's "informational document" to defendant motorists.
    • Opinion 20-94 - providing behind-the-scenes clerical assistance to prosecutor.
  • Virtual Court Proceedings
    • Opinion 21-149 - allowing volunteer attorneys to appear virtually as lawyer for the day  
    • Opinion 21-114(A) - disclosing the judge's own preferred gender pronouns during a virtual proceeding
    • cf. Opinion 20-162 - publicly sharing the judge's experience conducting off-hours virtual arraignments
  • Judicial Duties - Miscellaneous:
    • Opinion 20-80 - providing general legal and ethical information in email auto-response message.
    • cf. Opinion 20-124 - intrusions on court's independence included interference with judge's attempt to limit access to the court office areas for public health reasons.
  • Court's Vaccination Policies
    • Opinion 22-02 - denial of exemption application: use of leave; communicating opposition to policy. 
    • Opinion 21-150 - lawsuit challenging vaccine mandate: unsolicited offer of pro bono representation; recruitment of other plaintiffs.
  • Extra-Judicial Activities:
    • Opinion 21-121 - suggesting use of federal COVID-19 aid funds to complete courthouse repairs
    • Opinion 21-114(B) - attending a law firm's online virtual "launch" party.
    • Opinion 21-59(A) - speaking at a "remote or virtual" victim impact panel in a different jurisdiction.
    • Opinion 21-11 - volunteering for a hospital's COVID-19 study (f/t judge).
    • Opinion 20-149 - serving as a poll worker in light of pandemic-related shortage (f/t judge).
    • Opinion 20-108 - participating in web program regarding a hospital’s performance during the pandemic (f/t judge). 
    • Opinion 20-89 - sending congratulatory letters to high school seniors whose traditional in-person activities were curtailed.
    • Opinion 20-77 - serving on an advisory board that will make recommendations about emergency funding (f/t judge; extra-judicial activity).
    • Opinion 20-76 - evaluating loan applications under the federal Paycheck Protection Program (p/t judge; outside employment).
    • cf. Opinion 20-162 - publicly sharing the judge's experience conducting off-hours virtual arraignments
    • cf. Opinion 20-84 - commenting on a variety of professional topics to interns at the judge's former government employer, including the judge's current role addressing the needs of the public during the pandemic. 
  • Judicial Campaigns:
    • Opinion 20-111 - judicial candidate's attendance at virtual fund-raiser.

 

Some Opinions Mentioning Judiciary Law § 9

For ease of reference, here are some opinions starting in January 2021, which discuss the new Section 9 of the Judiciary Law concerning disclosure of a judge's reasons for recusal:

  • Opinion 21-02 - Digest: "A judge who believes that the statutory obligation to provide a reason for discretionary recusal is unconstitutional may act in accordance with a legal determination made by the judge on the record, but may not conceal the true basis of the judge’s ruling."
  • Opinion 21-45 - Digest: "Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve. (2) The judge may communicate privately with the reported attorney to advise them that a disciplinary complaint has been filed."
  • Opinion 21-86 - Digest: "(1) A judge who reported a government attorney to the grievance committee must disqualify in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter. (2) What the judge must state on the record or in writing pursuant to Judiciary Law § 9, when confidentiality has not been waived, is a legal question we cannot resolve. (3) If the judge believes the attorney’s appearance on a case that had previously been handled by another colleague in the same governmental law office constitutes impermissible judge-shopping, the judge may report this conduct to the grievance committee."
  • Opinion 21-97 - Digest: "We decline to comment on the appropriate scope of disclosure of a recusing judge under Judiciary Law § 9, as this is a legal question beyond our jurisdiction."

In addition, there are brief discussions in other opinions, such as: 

  • Level of Disclosure: Opinion 21-22(A) - see footnote 2 (suggesting that the statutorily required level of disclosure is likely lower than the full disclosure required for the 'affirmative consent' of remittal).
    • cf. Opinion 20-213 footnote 3: "Because remittal requires full disclosure of the basis for disqualification, sufficient for the parties and their counsel to freely and affirmatively consent to waive the conflict, we continue to believe remittal is not appropriate until and unless the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision" (citations and internal quotation marks omitted)
  • Personal/Embarrassing Exception: Opinion 21-48 - see footnote 1 (suggesting that a disciplinary proceeding against the judge's spouse would fall within the statutory exception).