Joint Opinion 13-09/13-52
January 24 and April 25, 2013
Digest: (1) A judge may respond to media inquiries about military law and justice issues, and participate in educational programs on such topics, subject to the public comment rule. (2) A part-time lawyer/judge who is acting on behalf of a client (a) may respond to media inquiries concerning issues addressed in an amicus brief that the lawyer/judge submitted on behalf of the client and (b) may attend military proceedings as a non-governmental observer on behalf of his/her client and prepare reports for his/her client, solely in his/her capacity as a lawyer representing a client, provided that the judge does not refer to or use his/her judicial status. (3) A judge may publicly explain and comment on the structure and procedures of certain types of military proceedings, subject to certain limitations. (4) A judge may publicly offer opinions on proposals for the improvement of military justice at public education programs, news panels, and Congressional briefings.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(C)(1); 100.4(C)(2)(a); 100.4(C)(3); 100.4(C)(3)(b)(iii); 100.6(B)(1)-(5); 101.1; Opinions 13-32; 13-06; 11-120; 10-206; 07-47; 06-121; 06-32; 98-56 (Vol. XVI).
The inquiring part-time attorney/judge states that he/she is also an officer of a not-for-profit military justice organization which “does not represent clients and is dedicated to improving and fostering public awareness of the military justice system.” The judge states that the organization submits amicus curiae briefs in certain military proceedings and also sends non-governmental organization observers to attend and report on such proceedings. The judge states that he/she frequently receives media inquiries to comment on a variety of military law and justice issues, including the propriety of various military proceedings. In Inquiry 13-09, the judge asks generally whether he/she may respond to media inquiries regarding military law and justice issues and participate in law school and public education programs on such topics. In Inquiry 13-52, the judge asks more specifically if he/she may (1) comment on the structure, constitutionality, and propriety of certain military proceedings; (2) explain for public information the procedures of certain military proceedings, in the context of specific pending cases; (3) publicly offer opinions on proposals for the improvement of military justice at public education programs, news panels, or Congressional briefings; and (4) serve as a non-governmental organization observer at military proceedings and prepare reports of his/her observations. The judge notes that he/she would not identify him/herself as a judge or refer to any proceedings in his/her court.1
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories, but may explain for public information the procedures of the court (see 22 NYCRR 100.3[B]). A judge may serve as an officer of an organization devoted to the improvement of the law, the legal system, or the administration of justice, or of an educational or civic organization not conducted for profit, subject to certain limitations (see 22 NYCRR 100.4[C]). A part-time attorney/judge may practice law, subject to certain limitations (see 22 NYCRR 100.6[B]-), and may accept private employment that is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B]).
Generally speaking, the inquiring judge may respond to media inquiries about military law and justice issues, and participate in educational programs on such topics, subject to the public comment rule (see Opinions 07-47; 06-32; see generally 22 NYCRR 100.3[B]). That is, the inquiring judge must not, except as expressly permitted by the Rules Governing Judicial Conduct and the Committee’s Opinions, make any public comment (see Opinion 13-06) about a proceeding that is “pending or impending” (see Opinions 13-32; 10-206 [defining pending and impending proceedings]), in any court within the United States or its territories. The Committee notes that, for the purposes of Rule 100.3(B)(8), the phrase “any court within the United States or its territories” necessarily includes proceedings before any United States military tribunal, regardless of the tribunal’s geographic location.
With respect to the inquiring judge’s more specific questions, the Committee has recognized that a part-time lawyer/judge has greater latitude for public comment on a pending or impending matter when he/she is specifically acting as a lawyer on behalf of a client in that matter (see Opinion 07-47). In Opinion 07-47, the Committee advised that 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 (see id.). Here, too, if the inquiring judge’s not-for-profit military justice organization has submitted an amicus curiae brief in a pending matter, the judge may respond to media inquiries concerning issues addressed in the brief, solely in his/her capacity as a lawyer representing a client. Similarly, if the judge’s proposed service as a non-governmental organization observer at military proceedings is performed in his/her capacity as a lawyer or legal advisor on behalf of a client, the judge may so serve and prepare reports of his/her observations in that capacity.2 These activities are permissible solely in the judge’s capacity as a lawyer in a particular matter, and the judge must not refer to or otherwise use his/her judicial status in the process (see Opinion 07-47; 22 NYCRR 100.2[C]). The Committee cannot comment on any legal questions, such as the fact-specific legal determination of whether a bona fide attorney/client relationship exists (see Opinion 11-120; 22 NYCRR 101.1).
Even when the judge is not representing a client in a particular matter, the judge may explain and comment on the structure and procedures of certain types of military proceedings, i.e., the judge may describe generally applicable rules and procedures, and may comment generally on the administration of military justice (see 22 NYCRR 100.3[B]; see also Opinion 13-06 [discussing the public comment rule]). However, the judge should not editorialize or comment on the constitutionality or propriety of such proceedings, and should not discuss or comment on any specific case, including the effect of applying procedural rules in a specific case (see Opinion 13-06 [providing guidelines about the extent of permissible and impermissible comment on pending and impending cases]). The judge should not attempt to predict the outcome of a particular proceeding (see id.).
The Rules Governing Judicial Conduct broadly permit judges to participate in efforts to improve the law, the legal system, and the administration of justice (see, e.g., 22 NYCRR 100.4[C]; 100.4[C][a]; 100.4[C]; 100.4[C][b][iii]), and the Committee believes that participation in such activities is to be encouraged (cf. Opinion 06-121). Therefore, the inquiring judge may publicly offer opinions on proposals for the improvement of military justice in a variety of settings, including public education programs, news panels, and Congressional briefings.
1 The judge represents that it is “inconceivable” that issues relating to military justice will come before the court in which he/she serves.
2 The Committee has previously advised that a full-time judge may serve as an observer with a not-for-profit civil rights group during an election in an African nation during the transfer from military government to democratic civilian rule (see Opinion 98-56 [Vol. XVI]). That prior opinion does not govern here, however, because the election process of an African nation (unlike United States military proceedings) is not subject to the public comment rule.