December 22, 2014
PERSONAL AND CONFIDENTIAL
This responds to your inquiry (14-165) asking if you may publish an article about ongoing litigation involving discovery sought from a social media company.
While a judge may engage in extra-judicial activities, including writing, such activities are subject to the requirements of the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). For example, a judge is prohibited from making 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]). A matter remains “pending or impending” at least until the time for appeals has expired (see e.g. Opinions 13-06; 01-53 [Vol. XX]).
In Opinion 13-06, the Committee advised a court attorney referee may write and edit the pocket part update for a commercially available for-profit legal publication although he/she would necessarily describe cases still “pending or impending” within the meaning of the Rules. The Committee noted that minimal and essentially factual commentary on changes in the law would not violate the prohibition against public comment (see id.). However, resolving ambiguities, praising or criticizing opinions or otherwise interpreting opinions is impermissible (see id.). Similarly, in Opinion 13-86, the Committee advised a judge may provide “head note style” information about a judicial decision when submitting the decision to a law journal for possible publication (see Opinion 13-86).
In contrast, a judge may not write about the effect of foreign court rulings about the internet in possible American court proceedings (see Opinion 00-115). Nor may a judge write a law review article in which he/she discusses the rationale behind a decision in a pending case as well as the decision’s potential impact on future decisions (see Opinion 14-26).
The Committee suggests that you carefully review and revise your article to avoid impermissible commentary on the case, and stick to strictly neutral factual observations to the extent practicable. I would note that in this process, some judges find it helpful to pay particular attention to their use of adjectives and adverbs, and eliminate those which may appear to reflect their own personal views.
Enclosed for your convenience are Opinions 14-26, 13-86, 13-06 and 00-115.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)