Opinion: 01-03

January 25, 2001

Digest:  A judge may participate in a panel discussion on jury selection and management in death penalty cases, but may not, in the course of the panel discussion, comment on any  pending or impending case.

Rule:  22 NYCRR 100.3(B)(8); 100.4(B);
           Opinions 97-132 (Vol. XVI);
           95-105 (Vol. XIII).


            A judge, on behalf of himself and another judge, each of whom has presided in death penalty cases, inquires whether it would be proper to accept an invitation to participate in a panel discussion on jury selection and management in death penalty cases. The panel will be part of a national conference on the jury system. The judge states that they are aware that neither may comment on the cases over which they presided, since appeals are pending in both cases.

            Section 100.4(B) of the Rules Governing Judicial Conduct permits a full-time judge to "speak, lecture, teach and participate in extra-judicial activity subject to the requirements of this Part" [i.e. Part 100] (emphasis added). Section 100.3(B)(8) of the Rules prohibits any judge from making "any public comment about a pending or impending proceeding in any court within the United States or its territories".

            Generally, these Rules do not conflict, and judges who teach or lecture on matters involving the law and the administration of justice may do so, provided they avoid any comment on any pending or impending case. However, the Committee has recognized that in teaching courses of study at a law school or college, it may be inevitable that some comment might have to be made on a pending case. In that situation, it has been determined that comment may be permissible, provided it is made in the course of classroom discussion, and does not include any comment on any case arising within that judge's jurisdiction. Opinion 95-105 (Vol. XIII). That exception has been strictly limited to the situations where the judge is a teacher of a regular course of study (Opinion 97-132 [Vol. XVI]), and even in that circumstance, no comment may be made upon cases arising in that judge's court or in a court within the judge's jurisdiction. Here, however, what is involved is not a regular course of study nor a mere pedagogical exercise in legal instruction. Thus, the strictures imposed by section 100.3(B)(8) are fully applicable. Accordingly, while participation in a panel discussion is permissible, care must be taken to avoid any public comment on any pending or impending case.