May a judge speak about matters arising in the judge's courtroom at a seminar limited to criminal defense lawyers?

Plain-English summary

A judge was invited to speak at a seminar sponsored by the New Mexico Criminal Defense Lawyers Association. Criminal defense attorneys could attend, but prosecutors could not. The presentation addressed issues arising in the judge's courtroom in cases handled by members of the association. Source: Opinion 08-06, p. 1

The committee recognized that the Code permits and encourages judges to lecture about the legal system and administration of justice. It said such activity still must comply with the Code, including Rule 21-200(A)'s requirements concerning public confidence in judicial integrity and impartiality and the appearance of impropriety. Source: Opinion 08-06, p. 1

The committee focused on the program's sponsorship, the exclusion of the other side of the adversarial process, and the presentation's connection to domestic violence cases in the judge's courtroom. It concluded that the public could reasonably perceive that hearing only defense-side views might affect the judge's impartiality in those cases and recommended declining the request. Source: Opinion 08-06, pp. 1–2

In practice

The opinion distinguishes the Code's general encouragement of judicial education from this specific seminar's one-sided audience and courtroom-related subject. Its recommendation rests on the appearance of impaired impartiality the committee found in these circumstances. Source: Opinion 08-06, pp. 1–2

Common questions

Q: Did the Code generally forbid judges from speaking about the legal system?

A: No. The committee said the Code permits and encourages such teaching, subject to its other requirements. Source: Opinion 08-06, p. 1

Q: Why did this seminar raise an impartiality concern?

A: Prosecutors were barred, while the presentation addressed issues arising in the judge's courtroom in cases involving association members. The committee thought a reasonable observer might see the judge as exposed only to the defense side. Source: Opinion 08-06, pp. 1–2

Q: What did the committee recommend?

A: It recommended that the judge decline the invitation to speak at this seminar. Source: Opinion 08-06, p. 2

Background and rules framework

The committee cited New Mexico Code of Judicial Conduct Rules 21-500(B) and 21-200(A), along with commentary to both. It applied the Code's appearance-of-impropriety standard to the proposed seminar presentation. Source: Opinion 08-06, p. 1

Citations and references

• New Mexico Code of Judicial Conduct Rule 21-500(B) and its commentary, concerning judicial speaking and teaching. Source: Opinion 08-06, p. 1
• New Mexico Code of Judicial Conduct Rule 21-200(A) and its commentary, concerning public confidence and appearance of impropriety. Source: Opinion 08-06, p. 1

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 08-06

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair
Hon. Kevin L. Fitzwater
Paul L. Biderman, Esq.
Prof. Robert L. Schwartz
September 2, 2008

Re: Judicial Advisory Opinion No. 08-06

You have requested an Advisory Opinion of the Advisory Committee on the Code of Judicial Conduct as to whether the Code precludes you from speaking at a seminar of the New Mexico Criminal Defense Lawyers Association. You have been asked to speak about the over which you preside. You are concerned about the propriety of your making the presentation because the seminar is limited to criminal defense attorneys; prosecutors are not permitted to attend.

The Committee believes that your concern is well taken. Although the Code permits and encourages judges to speak or lecture about the legal system and the administration of justice, such activities must be conducted in accordance with the requirements of the Code. Rule 21-500(B) NMRA; Commentary to Rule 21-500(B). Rule 21-200(A) NMRA stresses that a judge must act "at all times in a manner that promotes public confidence in the integrity and the impartiality of the judiciary." Rule 21-200(A) requires that a judge avoid even the appearance of impropriety. Commentary to Rule 21-200(A). An appearance of impropriety exists if "the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and confidence is impaired." Id.

The Committee believes that your presentation at the NMCDLA seminar would create an appearance that could impair public confidence in your impartiality in domestic violence cases. Indeed, the handling of domestic violence cases is a matter of significant public concern. The nature of your presentation addresses issues that arise in your courtroom in cases in which members of the NMCDLA represent clients. Based on the sponsorship of the program and because the seminar is designed so that the other side of the adversarial process will not be present, the Committee believes that it is reasonable for the public to perceive that, in speaking at the program, you would be subjected to only the defense side of any issues raised by your presentation. The Committee thus believes that a reasonable public perception can be that your impartiality in handling domestic violence cases could be affected.

The Committee recommends that you decline 'the request to speak at the seminar.

Very truly yours,

James J. Wechsler

JJW:ow

cc: Hon. Kevin Fitzwater
Paul Biderman, IPL Director Professor
Robert L. Schwartz

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