December 2, 2004
Digest: A judge should not write a letter to a public official of the county that states the judge’s position on a legal question growing out of the judge’s former role as a county legislator when the proposed letter, which is likely to become public, relates to a substantial political controversy; and, in addition, the controversy is likely to lead to litigation.
Rule: 22 NYCRR 100.2(C); 100.3(B)(8); 100.4(A)(3); 100.4(C)(1). Opinions 92-21, Vol IX; 92-114/92-127, Vol. X; 96-145, Vol. XV; 97-36, Vol. XV; 98-101, Vol. XVII; 98-137, Vol. XVII; 02-116; 04-24; 04-52.
A judge inquires whether he/she may write a letter to the deputy county executive, who was counsel to the county legislature when the judge was a county legislator, stating that records that the counsel took with him upon leaving office and that pertain to the judge’s role as a legislator (specifically, communications by him/her to the counsel) are protected by the attorney-client privilege and must not be disclosed to the counsel’s successor, who is seeking access to or possession of the files. The judge served several terms in the legislature while the recipient of the proposed letter was the counsel, including three terms as Presiding Officer. It appears that the events referred to in the proposed letter are the subject of a substantial public and political controversy in the community. It is expected that the letter would become public.
This Committee takes no position on the merits of the position espoused in the letter - - the issue of attorney-client confidentiality - because that presents a legal question, not a question of judicial ethics. An ethical issue arises, however, due to the public and political controversy that provides the context of the letter.
Generally, a judge may write or speak publicly on a matter relating to the judge’s own private interest, as long as the judge is protecting merely the judge’s private interest and is not using the prestige of judicial office to promote that interest. See, 22 NYCRR 100.2(C). Thus, a full-time judge may appear at a public hearing when acting pro se in a matter involving the judge or the judge’s interests. 22 NYCRR 100.4(C)(1); Opinions 92-21, Vol. IX, 02-116 [a judge may speak as a property owner at a planning board meeting about a zoning issue that affects the judge’s property.] A judge may express in writing the judge’s opinion regarding the judge’s private interest, if official stationery is not used and the judge does not mention his or her judicial office. Opinion 04-24 [a judge may write to the New York State Liquor Authority as a private citizen opposing the renewal of a liquor license for an establishment located near his home]; Opinion 97-36, Vol. XV [a judge may write to a state agency as a private citizen expressing support for the installation of a traffic light near the judge’s home]; Opinion 04-52 [a judge may pursue a lawsuit in the judge’s private capacity against a seller of real property for latent defects]; cf., 22 NYCRR 100.3(B)(8) [the prohibition against commenting publicly on pending or impending litigation “does not apply to proceedings in which the judge is a litigant in a personal capacity.”]
The Committee believes, however, that a judge may not enter a public controversy on a matter that goes beyond the judge’s strictly private interest. That is the situation in the present matter, which involves a political controversy relating to the judge’s previous public office. See, Opinion 92-114/92-127, Vol. X [a judge may not respond to a letter seeking clarification of the conditions under which the judge would issue gun licenses, “[i]n view of the public controversy about this matter . . . ”]; Opinion 98-101, Vol. XVII [while there is not a per se prohibition against membership in Planned Parenthood or the New York Civil Liberties Union, “a judge should take care that such membership does not involve the judge in being associated with matters that are the subject of . . . public controversy. Such association would be, among other things, “‘incompatible with judicial office.’ 22 NYCRR 100.4(A)(3).”]; Opinion 98-137, Vol. XVII [a judge’s membership in an activist organization that advocates and pursues positions “. . . that are of substantial public controversy. Many of which, in whole or in part, eventuate in litigation . . . ” is among other things, ‘incompatible with judicial office’ 22 NYCRR 100.4(A)(3)”].
Writing a letter as a private citizen on stationery that does not refer to the judge’s judicial office, while appropriate in many situations, would not in this particular instance solve the problem of a judge’s known association with a public controversy, as the judge appears to be well-known in the community, having been elected to the legislature and the bench, and having served in a leadership role in the county legislature.
It appears, moreover, that the controversy may well lead to litigation. If litigation is impending, that would be an additional reason why the proposed letter may not be written. See, Opinion 96-145, Vol. XV [a judge should not send a letter to a newspaper responding to an editorial critical of the actions of the judge when serving a county legislator, especially if the subject involves pending or impending litigation]. The Committee noted above that this prohibition against public comment on impending litigation does not apply to proceeding in which the judge is a litigant “in a personal capacity” (22 NYCRR 100.3[B]). The quoted provision has no application here. The possible litigation (on whose merits we take no position) would relate not to alleged private property rights or similar claims raised “in a personal capacity,” but to alleged privileged communications that were made by a public officer in his/her official capacity. Under such circumstances, the proposed letter should not be sent.