Opinion 25-49

March 27, 2025

Digest:  A judge may meet with a legislator to discuss the judge’s views about the strengths and weaknesses of New York’s discovery law and possible improvements.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 20-42; 19-120; 18-78; 16-135; 13-63; 11-29; 06-34.

Opinion:

          A legislator has asked the inquiring judge to “provide insight” on various discovery issues that judges encounter under Article 245 of the Criminal Procedure Law.  The judge recognizes that he/she may not comment on specific pending or impending cases, but asks if it is permissible to explain “how the law is applied in general,” identify aspects of the law “that could be improved upon to facilitate efficient and fair administration of justice,” and share his/her views about “weaknesses and strengths” in the law.  The judge further asks if he/she may meet privately with the legislator for these purposes and whether the judge’s court attorney may be invited to join the conversation.  If the conduct is not permissible for the judge personally, the judge asks if his/her court attorney may participate in lieu of the judge.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge generally may speak, write, and participate in extra-judicial activities, subject to limitations (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]).  For example, a judge must not make any public comment on a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]).  

          A judge may contact legislators about matters concerning the law, the legal system, or the administration of justice, including by private meeting (see e.g. Opinions 13-63 [judge may meet privately with state legislator to discuss pending legislation that proposes judicial upgrades for certain state courts]; 19-120 [judges may “publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations, or the terms or conditions of judicial service”]).  Likewise, we have advised that a judge may publicly advocate for “changes to the Penal Law to adopt a new standard in a particular class of criminal cases” by writing to executive and legislative bodies and/or officials (Opinion 16-135); may co-chair a bar association subcommittee “formed to address the issue of Brady disclosure and related Brady issues,” where the group intends to “comment on prospective legislation and possibly create protocols to further Brady’s goals” (Opinion 11-29); and may urge the legislature to enact a bill that would benefit incarcerated domestic violence survivors who have been convicted of crimes against their abusers (see Opinion 06-34). 

          That the issue of discovery reform may be controversial does not change the result, as we have advised that a judge may publicly comment on recently enacted bail reform legislation “to identify perceived strengths and weaknesses and to suggest that the legislature seek additional comments or testimony to improve the law” (Opinion 20-42; see also Opinion 18-78 [magistrates association may issue resolution supporting or opposing changes in the law affecting a local judge’s ability to set bail]).

          The judge may, therefore, meet privately with the legislator to discuss issues surrounding the discovery law, including its general application, its perceived strengths and weaknesses, and any recommended improvements.  As the judge recognizes, he/she must refrain from commenting on pending or impending cases.  Since the judge may properly meet with the legislator, we see no ethical bar to the court attorney’s attendance at the meeting.  We note, however, that the court attorney’s participation does not permit the judge to circumvent the public comment rule (see 22 NYCRR 100.3[B][8] [judge “shall require similar abstention on the part of court personnel subject to the judge’s direction and control”]).