September 13, 2011
This responds to your inquiry (11-77) asking that the Committee interpret 22 NYCRR 100.3(B)(8) to allow judges to comment on pending cases “while participating in educational programs meant to advance the profession’s understanding of the law.”
The Committee has consistently interpreted 22 NYCRR 100.3(B)(8) as prohibiting judges from commenting on pending or impending cases while lecturing on or participating in panel discussions about current trends in the law. 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, the Committee has determined that comment may be permissible. However, this exception has been strictly limited to those situations where the judge is a teacher of a regular course of study, 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 (see e.g. Opinions 09-92; 05-12; 01-03; 99-113; 97-132; and 95-105).
The Committee has again considered its position on this issue and, principally because the language of the rule is clear and unambiguous, it adheres to its prior interpretation and thus declines to interpret 22 NYCRR 100.3(B)(8) to permit such public comment on pending or impending cases during CLE programs where “current developments in the law are discussed.”
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)