September 6, 2018
Digest: A judge may provide a letter to both sides in an ongoing proceeding which includes an excerpt from the transcript indicating that a particular issue has been resolved with no finding of medical abuse or neglect.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); Opinions 15-165; 15-100; 14-26; 14-17; 00-65; 99-157; 90-67.
A judge asks about a post-judgment matrimonial case pending before him/her. An attorney who represented one of the parties in a custody matter requested that the judge provide a letter to his client’s employer indicating that the matter has been resolved with no finding that the attorney’s client committed any medical abuse or neglect upon a child that was the subject of a custodial matter. The judge asks if he/she may provide a letter stating this factual finding.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a judge must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B]), must not make any public comment on pending or impending matters in the United States and its territories (see 22 NYCRR 100.3[B]), and must not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]).
The reach of the public comment rule is very broad (see e.g. Opinions 15-165; 15-100). We have previously noted the Commission on Judicial Conduct’s warning “that a judge should not ‘attempt to repeat or to summarize out of court what was said in the courtroom’” with respect to a pending case (Opinions 15-165; 00-65). We have also advised that a judge’s discussion of his/her own prior decisions, even in proceedings which are no longer pending or impending, “should not go beyond the published decision” (Opinions 15-100; 14-26; 90-67).
Still, we have also said a judge may, to the extent legally permitted, amend his/her prior order to correct an error or omission that was brought to the judge’s attention and thereafter send the amended order to all parties entitled to a copy of the order, along with an appropriate cover letter (see Opinion 14-17). Likewise, a judge may respond to strictly factual inquiries from the media seeking information as to the status of a case before the judge (see Opinion 00-65) and may send a copy of his/her decision and order dismissing an indictment to the alleged crime victims (see Opinion 99–157).
Applying these principles, we conclude this judge may provide a letter to both parents who are engaged in a custody matter, attaching an excerpt from the transcript, indicating that a particular issue has been resolved with no finding that the inquiring party committed medical abuse or neglect on the minor child. Any subsequent use of the letter (for instance, a decision to send it to an employer) is at the discretion of the recipient.