April 19. 2007
Digest: A part-time judge who is permitted to practice law and who currently represents a client in a highly-publicized litigation may respond to media inquiries concerning the litigation in his/her capacity as a lawyer, but should not refer to or otherwise utilize his/her status as a judge in so responding.
Rules: 22 NYCRR 100.2(C); 100.3(B)(8); Opinions 05-126; 00-74 (Vol. XIX); 97-61 (Vol. XV); 93-113 (Vol. XI).
A part-time judge who is representing a client in a highly- publicized litigation has thus far declined to answer inquiries from the media regarding the proceeding, due to the restrictions in the Rules Governing Judicial Conduct that prohibit a judge from publicly commenting on pending or impending litigation. 22 NYCRR 100.3(B)(8). The judge now asks whether he/she is obligated, in his/her capacity as an attorney, to continue declining to answer questions from the media, during the course of the litigation.
It appears to this Committee that the obligations arising out of legal representation may, on occasion and under certain circumstances, necessitate a response by an attorney to media inquiries. Therefore, to absolutely bar such responses where the attorney is also a part-time judge may, in some circumstances, create an unwarranted and unnecessary barrier to an attorney’s obligation to provide effective assistance of counsel. Whether that is the situation now before us is not a judgment that the Committee is in a position to make. We merely hold that section 100.3(B)(8) of the Rules Governing Judicial Conduct does not completely bar a part-time judge from providing such responses solely in his/her capacity as an attorney.
This means, of course, that any response to the media must be solely in his/her capacity as an attorney. Any invocation of the fact that the attorney also serves as a judge could readily be perceived as lending the prestige of judicial office to advance the interests of the client and of the judge as a lawyer, and is therefore prohibited. 22 NYCRR 100.2(C); Opinions 05-126; 00-74 (Vol. XIX); 97-61 (Vol. XV); 93-113 (Vol. XI).