2010-22 (July 22, 2010)
Event, attendance/appearance; Educational activities; Speaking;
Compensation; Canons 2, 3, 4, 5 & 6; C.G.S. § 51-46a
New Code of Judicial Conduct (effective 1-1-11): Canons 1 & 2; Rules 1.1, 1.2, 1.3, 2.4, 2.10, 3.5, 3.10, 3.14 & 3.15

Issue: May a Judicial Official speak before a group of doctors, lawyers and others at an out-of-state conference hosted by a non-profit organization regarding the general use and presentation of forensic and scientific evidence in a criminal trial? If so, can the Judicial Official receive an honorarium as well as reimbursement for the costs of the conference, travel, lodging and meals?

Response: The inquiring Judicial Official in JE 2010-11 has resubmitted his/her inquiry with modified facts. Under the revised information provided, the Judicial Official indicated that if permitted to speak at the out-of state conference, he/she would not discuss his/her views of the evidence presented at the criminal trial he/she presided over beyond what was articulated in the ruling from the bench. Instead, the Judicial Official would discuss the general use and presentation of forensic and scientific evidence in a criminal trial. The idea would be to explain to those steeped in the science the challenges they face presenting such evidence to a judge or jury who does not have the same background or knowledge. Based on the revised facts presented, the participating Committee members determined as follows:

The Judicial Official may speak at the conference regarding “the general use and presentation of forensic and scientific evidence in a criminal trial” subject to the limitations set forth in JE 2010-11 and the conditions set forth in Formal Advisory Opinion JE 2010-21 which were premised on Canons 2, 3 and 4 of the existing Code of Judicial Conduct (hereinafter, “CJC”) and Rule 3.1 of the Code of Judicial Conduct which takes effect on January 1, 2011 (hereinafter, “New CJC”):

1. (1) The Judicial Official should not comment on a pending or impending matter or make any statement that might reasonably be expected to impair the fairness of a pending or impending matter (see also CJC Canon 3(a)(6) and New CJC Rule 2.10(A));
2. The Judicial Official’s participation should not be such as to lead a reasonable person to question his/her capacity to decide impartially any issue under discussion that may come before the Judicial Official (see also CJC Canon 4 and New CJC Rule 2.10(A)), and specifically:
   (A) the Judicial Official should not suggest that he/she would adopt a particular interpretation of disputed legal issues,
   (B) the Judicial Official should not make statements that indicate a
   predisposition regarding any particular case, issue or witness that may come before the Judicial Official, and
   (C) the Judicial Official should ensure that his/her participation will not
   interfere with the proper performance of his/her judicial duties or create
   grounds for disqualification;
3. The Judicial Official should not offer legal or other advice to the conference participants as to how they should handle specific matters and should exercise caution in answering any questions that seek to elicit such advice (see also CJC Canon 5(f) and New CJC Rule 3.10);
4. In the event that the Judicial Official chooses to comment on a case that he/she presided over, any such commenting is subject to the following restrictions:
   (A) if the case involves a confidential juvenile matter, it would not be proper to reveal information that would lead to the identity of the juvenile involved (see also CJC Canon 2(a) and New CJC Rule 1.1 and 1.2),
   (B) if the case is now an erased matter, it would be not be proper to discuss any specific information that is attributable to it (see also CJC Canon 2(a) and New CJC Rule 1.1),
   (C) disclosure of any confidential information acquired in the Judicial Official’s judicial capacity would not be proper (see also CJC Canon 2 and New CJC Rule 3.5), and
   (D) it would not be proper to state personal views that may go beyond what was specifically stated in oral or written rulings or on the record of the particular case (see also CJC Canon 2 and New CJC Rule Canons 1 and 2);
5. The Judicial Official must be willing and available to participate in appropriate educational activities for other groups, if requested and available (see also CJC Canon 2 and New CJC Canons 1 and 2); and
6. The Judicial Official should retain the right to review and pre-approve the use of any biographical information or other material used to describe the Judicial Official’s participation in the program and to review any post-presentation publications (see also CJC Canon 2(b) and New CJC Rules 1.3 and 2.4(C)).

To the extent compensation is involved, the Committee determined that this single instance of speaking at an out-of-state seminar attended by doctors, lawyers and others does not appear to violate the general provisions of Canon 5 (c)(1) in that it does not reflect adversely upon the Judicial Official’s impartiality, interfere with judicial duties (provided the time away from the Judicial Official’s job is approved) and does not involve frequent transactions with persons who are likely to come before the court on which the Judicial Official serves. The payment of travel, hotel, meals and conference fees qualify as reimbursement of expenses pursuant to Canon 6. A $300 honorarium does not exceed a reasonable amount and, therefore, provided that other keynote speakers receive a similar honorarium, acceptance of the payment is permitted by Canon 6. The Judicial Official would need to verify that the honorarium is comparable to what is provided to non-judge keynote speakers. Furthermore, the Judicial Official should report the honorarium as income to the extent required by law. (See also Conn. Gen. Stat. § 51-46a and New CJC Rules 3.14 & 3.15)

The Committee noted that this opinion should not be construed to repudiate the conclusions reached in Informal JE 2010-11, especially the determination regarding the prohibition against discussing scientific evidence presented in an erased case.