March 12, 2009
Digest: A judge may communicate with a bar association task force formed to respond to media criticism about judges that is perceived to be uninformed and unfair. A judge’s communication may include providing copies of publicly recorded documents about a case and meeting privately with members of the bar association, as long as the judge does not offer his/her opinions about or analysis of the case and as long as the judge secures an agreement from the bar association to keep confidential any comments the judge makes during the private meeting.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); Opinions 94-22 (Vol. XII); 92-13 (Vol. IX)
A judge asks whether he/she may communicate information about a case that is in the public record to a lawyer acting under the auspices of a voluntary bar association task force formed to respond to media criticism of judges that “is perceived to be uninformed and unfair and to pose a threat to the core principle of independent judicial decision-making.”
A judge must avoid impropriety and the appearance of impropriety (see 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]), but may make public statements in the course of his/her official duties or explain for public information the procedures of the court (see id.).
The Committee previously has advised that a judge may respond to a letter to the editor in a local newspaper criticizing the judge's alleged conduct of a closed hearing, provided the response is objective, relates solely to procedural matters, and does not detract from the dignity of the judge's office, but that it would be wiser for the judge to refrain from a public response (see Opinion 92-13 [Vol. IX]). And, in Opinion 94-22 (Vol. XII), the Committee advised that a judge may not comment publicly about a pending matter despite the false, misleading and inaccurate public statements being made by a litigant, even to correct the litigant’s public statements but may seek the assistance of an appropriate bar association or judicial association committee to do so.
Therefore, it is not improper for a judge to communicate with a voluntary bar association task force formed to respond to media criticism about judges that is perceived to be uninformed and unfair. And, it is the Committee’s view that the Rules Governing Judicial Conduct do not preclude a judge from providing the voluntary bar association with copies of publicly recorded documents in a case, such as a transcript of proceedings, to assist the task force in developing a response to media criticism. A judge also may meet privately with members of the bar task force to identify relevant aspects of the public record as long as the judge does not offer an analysis of the case or his/her opinions about the case and as long as the judge secures an agreement from the bar association to keep confidential any comments the judge makes during the private meeting (see 22 NYCRR 100.3[B]).