March 8, 2001
Digest: A judge may be interviewed by the attorneys for the plaintiff in a pending lawsuit, on matters observed by the judge in his or her court and on the practices and procedures of the court, but may not express any opinion on the legal merits of the lawsuit, or comment on any pending or impending case.
Rule: 22 NYCRR 100.2(A); 100.2(C); 100.3(B)(8); Opinions 88-155 (Vol. III); 98-118 Vol. XVII); State of the Judiciary Address, Hon. Judith S. Kaye, January 8, 2001.
The inquiring judge submits the following inquiry to the Committee:
A class action lawsuit has been filed and is pending in New York State Supreme Court alleging, among other things, deprivation of a right to counsel to indigent defendants in criminal cases as a consequence of inadequate funding for 18-b lawyers.
Lawyers and an expert-analyst for the plaintiffs have asked to interview me (and other judges) regarding our observations in court proceedings. I handle a large calendar and am in a good position to describe procedures and practices with regard to the issue. I presume the interview is for the purpose of deciding whether to call us as witnesses or, in the alternative, as a basis for the expert's further study or opinion although I am not sure of their ultimate litigation strategy.
May I participate in the interview?
To the extent that the interview is to consist of a recitation by the judge of his or her observations in the court, and a description of the practices and procedures of the judge's court, the Committee does not believe there is any ethical barrier to being interviewed by counsel for the plaintiffs. While the Rules Governing Judicial Conduct prohibit a judge from testifying voluntarily as a character witness (22 NYCRR 100.2[C]), there is no impediment to a judge testifying to facts witnessed by the judge. For example, a judge may provide an affidavit and testify as a fact witness regarding an accident that the judge witnessed. Opinion 98-118 (Vol. XVII). From this it could be concluded, as it was in Opinion 88-155 (Vol. III), that a judge could also be interviewed by counsel for a party prior to appearing as a witness.
But it is not insignificant that this is not an automobile accident case. It is a case raising constitutional issues, in which the State of New York is the defendant, and in which the operation of the court system is obviously of central importance. Certain caveats must therefore be borne in mind. Nothing stated by the judge in such an interview is to consist of an expression of opinion as to the legal merits of the pending action. The Committee takes note of the fact that judges have publicly expressed views as to the desirability of raising assigned counsel rates. See e.g., State of the Judiciary Address, Hon. Judith S. Kaye, January 8, 2001. But this is not the same as voicing an opinion that the plaintiff in the pending action is correct as to the legal claims being made. That is for the court before which the matter is pending to determine, not the judge or judges being interviewed. Moreover, we further advise that the judge should exercise care to avoid commenting on any pending or impending proceeding, in violation of section 100.3(B)(8) of the Rules. Adherence to such guidelines, will, we believe, avoid the appearance of partiality. 22 NYCRR 100.2(A).