January 27, 2000
A judge, who is considering bringing a defamation action against a newspaper,
should not, by letter or otherwise, personally contact attorneys seeking
their opinion as to accuracy of the newspaper articles, and should not
use court time, resources, stationery or staff in pursuing the matter.
22 NYCRR 100.2(C); 100.3(A).
A newspaper article about the judiciary in the inquiring judge's county characterized the inquirer in terms which the judge considers defamatory. A law suit against the newspaper is anticipated. In that regard, the judge wishes to contact lawyers who appear before the judge and request that they fill out a questionnaire dealing with their contacts with the newspaper and their opinion as to the accuracy of the statements about the judge. In the proposed covering letter to the attorneys, the judge intends to inform them that the procedure being employed to ascertain whether there is a sufficient basis for bringing a law suit "has been submitted to the Advisory Committee on Judicial Ethics and conforms to their directions." The judge seeks the Committee's opinion whether the proposed "process would violate any judicial ethical standards."
A judge may, of course, pursue legal remedies to vindicate his or her personal legal rights which are believed to have been violated. This does not mean, however, that there are not constraints upon the pursuit of such remedies. In this instance, we are of the opinion that it would be unethical for the judge to personally contact lawyers for the purpose of securing their opinions as to the accuracy of newspaper articles dealing with the judge's judicial performance. The proposed letter to the attorneys is over the signature of the judge and, in our view, constitutes the improper lending of "the prestige of judicial office to advance the private interests of the judge." 22 NYCRR 100.2(C). Further, the judge should not use court resources, staff, stationery, or time that would otherwise be devoted to judicial duties in pursuing this private matter. As stated in section 100.3(A) of the Rules, "(t)he judicial duties of a judge take precedence over all the judge's other activities." And, in no circumstances is there to be any representation that what is being done is in conformity with directions of this Committee.
Nothing stated herein is intended to express an opinion concerning the
merits of any law suit contemplated by the inquiring judge.