The New York Advisory Committee on Judicial Ethics has issued an opinion addressing the ethical considerations for appellate judges who also serve as adjunct faculty members at a law school when faced with applications for amicus curiae status filed by their fellow professors. The opinion, designated 25-98, clarifies the circumstances under which these judges can participate in deciding such applications.
The central question addressed in the opinion is whether a judge must recuse themselves from deciding on a professor’s amicus brief application simply because the application identifies the professor’s law school affiliation. The committee concluded that participation is permissible, provided the judge had no prior involvement in the application and the brief is not being filed on behalf of the law school itself or any of its entities, such as a clinic.
The committee emphasized the importance of avoiding even the appearance of impropriety and maintaining public confidence in the judiciary’s integrity and impartiality, referencing 22 NYCRR 100.2 and 100.2(A). Judges are required to disqualify themselves from any proceeding where their impartiality might reasonably be questioned, as outlined in 22 NYCRR 100.3(E)(1), or where disqualification is mandated by law, including Judiciary Law § 14 and 22 NYCRR 100.3(E)(1)(a)-(f).
The opinion distinguishes the current scenario from situations where specific factual connections might warrant disqualification or disclosure. Examples include cases involving the educational institution that employs the judge or instances where the judge is co-teaching a course with an individual who is a principal or officer of a litigant in the case. The committee referenced prior opinions, such as 07-158 and 24-194, to illustrate such scenarios.
In Opinion 07-158, a part-time judge who was also a full-time law school professor was advised to disclose the relationship when an attorney they had selected to assist in teaching a trial advocacy course appeared in their court. Opinion 24-194 stated that a full-time judge may not preside over a case pertaining to the legality of a particular statutory scheme, where the judge is an adjunct faculty member at an educational institution involved in that statutory scheme and is co-teaching a course with a principal or officer of a litigant in the case.
The committee also noted that judges are prohibited from practicing law and must avoid impermissible ex parte communications, referencing Opinion 22-91 and 22 NYCRR 100.3(B)(6); 100.4(G). The opinion assumes that the judges would decline any invitation from their faculty colleagues to consult on a proposed amicus curiae application.
The opinion references several prior opinions, including 24-194, 23-44, 22-91, 15-23, 07-158, and 04-42, to provide context and consistency in its ethical guidance. The committee ultimately concluded that the judges may participate in deciding applications for amicus curiae status independently filed by other faculty members of the same law school, even though the application lists the institution for identification purposes, provided that the judges had no involvement in the application.
