Opinion 26-44

March 26, 2026

Digest:   (1) During the course of his/her campaign for election or re-election to judicial office, a judge may make comments and recommendations concerning the Commission on Judicial Conduct which, in the judge’s view, will help improve the law, legal system and the administration of justice.  The judge may also respond to personal attacks, provided such response is truthful and not misleading.  In so doing, the judge must respect and comply with the law.  Thus, where the judge’s proposed comments, recommendations, or responses pertain to his/her prior experience in filing a disciplinary complaint against another judge, he/she may not disclose information about his/her complaint that would breach confidentiality.  The judge must also ensure that his/her statements do not cast reasonable doubt on his/her ability to be impartial.  (2) The judge may publicly disclose our published judicial ethics opinions, including those that, in the judge’s view, affect his/her conduct or ability to comment.

Rules:    Judiciary Law §§ 45(1); 212(2)(l)(iii); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(4)(d)(iii); 100.5(A)(4)(e); Opinions 26-17; 19-133; 17-142.

Opinion:

          The inquiring judge, a candidate for election or re-election to judicial office, previously filed a complaint against another judge with the Commission of Judicial Conduct and was dissatisfied both with the outcome and how the Commission handled the complaint.  The judge now asks if he/she may, during the course of his/her campaign, inform the public of his/her view that the Commission did not properly investigate the complaint and that laws should be enacted to compel a fair investigation, hold the Commission accountable, and require them to provide “the basis of their decision with facts and rationale.”  Specifically, the inquiring judge wishes to (1) advise the public of his/her view that the Commission failed to interview material witnesses he/she identified in the complaint; (2) advocate that a law should be enacted to compel the Commission to contact such witnesses; (3) advise the public of his/her view that the Commission’s decisions are often boilerplate and/or lack reference to specific facts; (4) advocate that the law should change to hold the Commission accountable and require them to provide the basis of their decision with facts; (5) advise the public of his/her view that the Commission should conduct more thorough investigations and make such investigation known to the complainant; (6) advise the public of his/her view that “the Commission is not beyond any Judge, including the Appellate Division who must justify its decisions based on fact;” (7) advocate that the Commission “must be required to clearly with reference to admissible evidence justify their decision”; and (8) advocate that the Commission should “investigate [its own] panel for potential bias,” especially when a complaint is made against a judge with administrative or supervisory responsibilities.  In addition, it is the inquiring judge’s position that certain “lies” have severely damaged his/her campaign, and the judge asks if he/she may respond to them.  Finally, the judge asks if he/she may publish this Committee’s decision on these matters.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must “respect and comply with the law” (22 NYCRR 100.2[A]), and must always act to promote public confidence in the judiciary’s integrity and impartiality (id.).  A judge’s judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]).  A judge’s extra-judicial activities must therefore be compatible with judicial office and must not cast doubt on the judge’s impartiality, detract from judicial dignity, or interfere with judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  A judge’s extra-judicial activities are subject to generally applicable limitations on judicial speech and conduct, the public comment rule (see 22 NYCRR 100.3[B][8]), and limitations on political activity (see 22 NYCRR 100.5[A][1]).  A judge who is a candidate for election or re-election to judicial office within the applicable window period may respond to attacks on his/her record (see 22 NYCRR 100.5[A][4][e]), provided he/she does not knowingly make any false statement or misrepresent the identity, qualifications, current position, or other fact concerning the candidate or an opponent (see 22 NYCRR 100.5[A][4][d][iii]).

          As we advised in Opinion 26-17 (citations omitted):

In general, a judge may publicly support measures to improve the law, the legal system and the administration of justice.  Thus, for example, a judge may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service, and may do so by (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to public officials, governmental bodies, and labor unions; (c) testifying at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee (id.).  We have also advised that judges may express views supporting or opposing a funding increase for the Commission on Judicial Conduct in an upcoming budget year. Because the Commission “is a body constitutionally vested with authority to discipline judges and thus has a role in maintaining public confidence in the judiciary,” we concluded that “the appropriate level of funding for the Commission is a matter concerning ‘the law, the legal system or the administration of justice.’”  Accordingly, we said a judge could comment on this subject with executive and legislative branch officials, whether in meetings or in writing.

Of course, even when a judge is expressing his/her views on core matters concerning the law, the legal system or the administration of justice, he/she must abide by generally applicable limitations.  For example, the judge must “respect and comply with the law;” ensure that his/her advocacy does not “cast reasonable doubt on the judge’s capacity to act impartially as a judge;” abide by the public comment rule; and avoid impermissible political activity.

There is an additional possible complication when a judge’s recommendations are based on his/her experience in filing a disciplinary complaint against another judge, and that complaint has not resulted in a published disciplinary decision.  In that case, unless confidentiality has been waived, it is our view that the judge should not disclose information about his/her complaint that would breach confidentiality.  Here, we note that the inquiring judge, presumably in accordance with confidentiality requirements under Judiciary Law § 45(1), has already advised that he/she will not disclose information regarding the disciplinary complaint he/she previously filed.

Accordingly, we conclude the inquiring judge may make recommendations concerning the Commission on Judicial Conduct which are intended to improve the law, the legal system or the administration of justice.  Where the judge’s recommendations are based on his/her experience in filing a disciplinary complaint against another judge, the judge may not disclose information about his/her complaint that would breach confidentiality.

          The inquiring judge believes that his/her campaign for judicial office has been severely damaged by “lies” and wishes to address these lies.  In Opinion 19-133, a judicial candidate was concerned that certain allegations were arising during his/her judicial campaign for political reasons, and he/she wished to respond by (1) disclosing the respective lengths of his/her employment as a part-time judge and as an attorney and (2) sharing copies of ethics opinions which, in his/her view, authorized his/her conduct.  We advised that the judge “may, in his/her capacity as a judicial candidate, ‘respond to personal attacks or attacks on [his/her] record,’ provided the response is truthful and not misleading” (id. [citations omitted]).  As relevant here, we further advised that the judge may, in his/her sole discretion, disclose any judicial ethics opinions he/she may have received and even “explain how his/her conduct has been influenced and guided by such opinions” (id.).

          While this inquiry has a different focus than the one posed in Opinion 26-17, the answer remains the same.  The parameters pursuant to which a judge may comment and make recommendations are clearly delineated in our prior opinions.  Thus, the judge may comment on and advocate for change in the laws and/or the administration of justice subject to the above-referenced limitations.  In discussing his/her prior experience as an individual who filed a complaint with the Commission, the judge “may not disclose information about his/her complaint that would breach confidentiality” (Opinion 26-17).  As we are required to publish our ethics opinions (see Judiciary Law § 212[2][l][iii]), we likewise see no reason to preclude this judge from disclosing them as well.  Any comments by the inquiring judge in response to personal attacks must be “truthful and not misleading” (Opinion 19-133; see also Opinion 17-142 [summarizing prior opinions]; 22 NYCRR 100.5[A][4][d][iii]).

          In sum, during the course of his/her campaign for election or re-election to judicial office, the inquiring judge may make comments and recommendations concerning the Commission on Judicial Conduct which, in the judge’s view, will help improve the law, legal system and the administration of justice.  The judge may also respond to personal attacks, provided such response is truthful and not misleading.  In so doing, the judge must respect and comply with the law.  Thus, where the judge’s proposed comments, recommendations, or responses pertain to his/her prior experience in filing a disciplinary complaint against another judge, he/she may not disclose information about his/her complaint that would breach confidentiality.  The judge must also ensure that his/her statements do not cast reasonable doubt on his/her ability to be impartial.  The judge may publicly disclose our published judicial ethics opinions, including those that, in the judge’s view, affect his/her conduct or ability to comment.