January 28, 1999
Upon proper request, a judge may testify before the New York State Senate
on behalf of the appointment of an Associate Judge of the New York State
Court of Appeals.
22 NYCRR 100.2(C);
Opinions 88-63 (Vol. II);
96-117 (Vol. XV).
A judge seeks the opinion of the Committee as to whether it would be ethically proper to respond to the request of the New York State Senate to testify at the confirmation hearing of another judge for the position of Associate Judge of the New York State Court of Appeals. It appears that the prospective appointee asked the inquiring judge's permission to put the judge's name on a list for possible inquiry by the State Senate. The two judges have known one another professionally and personally for many years.
Section 100.2(C) of the Rules Governing Judicial Conduct states:
A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
It is the Committee's opinion that the inquiring judge may respond to a request of the New York State Senate to testify. This Committee has previously indicated that a judge, in addition to being permitted to respond to a subpoena, may also respond to official inquiries. See e.g., Opinion 88-63 (Vol. II). Further, the Committee has stated that a judge is free to respond to a Mayor's Committee on the Judiciary when an inquiry is made by that Committee regarding another judge's reappointment. See Opinion 96-117 (Vol. XV).
Given the disclosed long-standing personal and professional relationship of the two judges herein, and the circumstances under which the appearance is being made (i.e. at the request of the confirming body), the Committee is of the view that neither the spirit nor the letter of section 100.3(C) would be violated by the judge's appearance and testimony.