January 30, 1992
Digest: 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. However, it would be wiser for the judge to refrain from a public response.
Rules: 22 NYCRR 100.2(a); 22 NYCRR 100.3(a); 22 NYCRR 100.3(a)(6).
A judge has submitted for the Committee's consideration a letter to the editor recently published in a local newspaper in the judge's county. It is entitled "System is Frustrating" and is critical of the court system where "judges and lawyers get together and decide who is right and who is wrong before they know the whole story." It also states that "The whole country is slowly going down the tube and people of the judicial system don't care." The article does not identify by name the particular court or judge.
The inquiring judge apparently identified the case referred to in the letter by the names of the authors who were not the actual parties (a relative of the authors was one of the parties). The judge also states the case is now closed.
The judge inquires whether it is ethically permissible to write a letter, in response, to be published in the same newspaper, indicating that the author's statements are “completely false and unfounded, since both parties were represented by counsel, a fact-finding was held at which the parties testified under oath, there never was a pre-trial conference with or without the parties, and the entire matter is on the record.”
Section 100.2(a) of the Rules of the Chief Administrator of the Courts states that "A judge shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary."
Section 100.3(a) of the Rules states that a judge shall be unswayed by partisan interests, public clamor or fear of criticism.
Section 100.3(a)(6) states that “a judge shall abstain from public comment about a pending or impending matter in any court” but “judges are not prohibited from making public statements in the course of their official duties or from
explaining for public information procedures of the court.”
A judge must expect to be the subject of public scrutiny and, therefore, must accept criticism, however merciless, that might be viewed as opprobrious by the ordinary citizen.
Here the case, which is the subject of the newspaper article, no longer is pending. Therefore, the judge is at liberty by public response to rectify any of the procedural misconceptions alluded to in the letter enumerated in the inquiry [Rule 100.3(a)(6)]. The judge must, however, scrupulously avoid personalizing the comments, refrain from invective, and be objective and dispassionate in the commentary, so as not to detract in any way from the dignity of judicial office and to uphold the judicial process.
Subject to the foregoing constraints, no ethical impediment exists in the Canons or Rules of Judicial Conduct prohibiting a response by the judge.
While no ethical objection, within the constraints of Rule 100.3(a)(6), is apparent to the judge’s answering, the Committee considers this an unwise course, It is further the opinion of the Committee that, where it can practically and expeditiously be done, a response in support of a judge or the judicial system, in answer to newspapers criticism, is, in general, best left to the objectivity of a local, county or state bar association.