May 4, 2017
Digest: When giving a speech about the law, the legal system or the administration of justice at a court-sponsored Law Day event, a judge should not publicly criticize or attack a sitting public official, or comment on his/her remarks. Rather, the judge should focus on the law to avoid casting doubt on his/her ability to perform judicial functions appropriately consistent with his/her legal and ethical duties.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(4)(a); Opinions 17-38; 14-49; 14-34; 07-170; 05-101; 04-123; 04-71; Marbury v Madison, 5 US 137 (1803).
A full-time trial judge asks if he/she may, at a court-sponsored Law Day event, “address comments made by public officials, particularly the sitting president of the United States, that are critical of the role of an independent judiciary.” The event’s venue will be a public area of the courthouse likely with media. Those present will likely be lawyers, judges from other courts, local high school students, and other interested persons.
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 may generally speak, lecture, and teach (see 22 NYCRR 100.4[B]), but must ensure that his/her extra-judicial activities are not incompatible with judicial office and do not (1) cast reasonable doubt on his/her capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-).
We conclude this judge may discuss judicial independence at a court-sponsored Law Day event, as the topic clearly concerns the law, the legal system or the administration of justice. However, “the Rules require that a judge act in a manner that promotes ‘public confidence and integrity and impartiality of the judiciary”’ (Opinion 04-71; 22 NYCRR 100.2[A]; see generally Opinion 07-170). Thus, we strongly caution the judge to craft his/her speech in a way which does not personally criticize, attack, or comment on any public official or his/her statements (see Opinion 04-71). Such self-restraint will help maintain public confidence in the judge’s ability to “perform judicial functions in an appropriate manner consistent with [his/her] legal and ethical obligations” (Opinion 14-49; 22 NYCRR 100.5[A][a]), help minimize “the danger of a public perception of entanglement of the judiciary itself in the political process” (Opinion 05-101), and avoid any possible appearance that the judge is inserting him/herself unnecessarily into public controversy (see generally Opinions 17-38; 04-123).
Of course, a judge has “the inherent power to interpret the appropriate provisions of governing law” (Opinion 14-34, citing Marbury v Madison, 5 US 137, 177  [“lt is emphatically the province and duty of the judicial department to say what the law is”]). For that reason, the focus of the judge’s speech, especially in the context of a Law Day ceremony, should be on the law and not on comments made by public officials that he/she believes are critical of the judiciary.