Opinion 25-68

May 15, 2025

Digest:  A judge may write a letter to the editor about “recent attacks by public officials against judges,” but must not respond directly to the public officials, nor comment on the specific pending or impending cases which ostensibly occasioned the officials’ inflammatory rhetoric.  Among other generally applicable limitations, the judge’s letter must not detract from the dignity of judicial office and must be consistent with judicial integrity and impartiality.

Rules:   22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); Opinions 25-60; 17-54.

Opinion:

          A judge asks whether he/she may write a letter to the editor of his/her local newspaper regarding “recent attacks by public officials against judges.”  The judge wishes to call upon judges and lawyers to stand up to those officials’ inflammatory rhetoric concerning judges whose rulings they do not like.  Moreover, as the officials in question accuse judges of abusing their power, the inquiring judge would also like to clarify the role of the appellate process in preventing such abuse.

          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]).  A judge’s extra-judicial activities must comport with his/her office, and must not cast reasonable doubt on his/her ability to act impartially as a judge; detract from the dignity of judicial office; or interfere with judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  A judge must also refrain from any public comments on a pending or reasonably foreseeable proceeding in any court within the United States or its territories, although he/she may explain “for public information the procedures of the court” (22 NYCRR 100.3[B][8]; 100.0[V]).

          In Opinion 17-54, a judge wished to “address comments made by public officials, particularly the sitting president of the United States, that [were] critical of the role of an independent judiciary” at a court-sponsored Law Day event.  We said the judge “should not publicly criticize or attack a sitting public official, or comment on his/her remarks.  Rather, the judge should focus on the law to avoid casting doubt on his/her ability to perform judicial functions appropriately consistent with his/her legal and ethical duties” (id.).

          More recently, where a judge was concerned about federal judicial orders being ignored, we advised that “a judge may speak publicly about the importance of judicial independence and the rule of law,” and accordingly, could speak to federal legislators on this issue (see Opinion 25-60).  In that same opinion, we advised that the judge may “speak to government officials, including federal legislators, to urge them to oppose proposed or enacted executive orders, policies, or legislation” designed to “rescind citizenship of naturalized citizens based on their performance of judicial duties, including their judicial decisions or other statements made in their official capacity as judges.”  We noted that those “issues clearly impact the law, the legal system, and the administration of justice as well as the inquiring judge personally” (id.).

          Similar interests are at issue here.  While our precedents clearly recognize that judges may speak publicly in support of judicial independence and the rule of law, they do not permit judges to respond directly or in kind to inflammatory rhetoric by public officials.

          Accordingly, we conclude that the inquiring judge may write a letter to the editor, consistent with these precedents and other applicable speech limitations.  The judge’s letter may support judicial independence and the rule of law, as these are core matters relating to the law, the legal system, and the administration of justice (see e.g. Opinion 25-60).  It is also permissible to explain how the appellate process can work to prevent or rectify various alleged abuses or missteps by judges, subject to the public comment rule (see 22 NYCRR 100.3[B][8]).  However, the judge’s letter must promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and not detract from the dignity of judicial office (see 22 NYCRR 100.4[A][2]).  The letter therefore “should not publicly criticize or attack a sitting public official, or comment on his/her remarks” (Opinion 17-54) and must not publicly comment on any “pending or impending” cases within the United States or its territories, including those cases which apparently occasioned the officials’ inflammatory rhetoric.

          As for the judge’s proposal to employ a “similar format” to “a New York Times editorial” that the judge recently read, it is unclear from the inquiry what the judge has in mind.  Accordingly, we must decline to comment on this issue other than to note that the format and substance of the judge’s letter must comport with the Rules Governing Judicial Conduct.