March 21, 2006
This is in response to your inquiry (05-158) in which you ask “whether there is any ethical prohibition against a judge authoring an article expressing a view critical of the court’s limited authority in review of administrative agency determinations, and recommending a modification of CPLR Article 78 so as to provide for the possibility of justice jurisdiction.”
As you note, “judges may write and publish scholarly articles on matters of legal interest.” Further, judges may appear before an executive or legislative body on matters concerning the law, the legal system or the administration of justice. 22 NYCRR 100.4(C)(1). Implicit in that authority is the permissibility of criticizing the statutory framework for Article 78 proceedings and recommending legislative modification.
However, please note that section 100.3(B)(8) of the Rules Governing Judicial Conduct prohibits public comment about any pending or impending court proceeding. 22 NYCRR 100.3(B)(8). Thus, any article written by you should comply with that requirement.