Opinion 26-17
February 5, 2026
Digest: (1) A judge may make recommendations concerning the Commission on Judicial Conduct which are intended to improve the law, the legal system or the administration of justice. (2) Where the judge’s recommendations are based on his/her experience in filing a disciplinary complaint against another judge, he/she may not disclose information about the complaint that would breach confidentiality.
Rules: Judiciary Law § 45(1); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1); Opinions 19-120; 18-185; 13-17; 08-73.
Opinion:
The inquiring judge previously filed a complaint with the Commission on Judicial Conduct against another judge. That complaint is no longer pending and apparently did not result in a published disciplinary decision. As a result of this experience, the judge asks if he/she may publicly advocate “that the Commission should be improved by constitutional amendment.” Specifically, the judge seeks an amendment requiring the Commission to 1) ensure the complainant’s witnesses are interviewed; 2) take affirmative steps to assess and avoid conflicts of interest; 3) assign “retired judges or volunteer attorneys from different jurisdictions” to minimize conflicts; 4) issue a detailed decision specifying the basis for dismissal, rather than relying on standard form language; 5) specify what evidence was reviewed and explain why other proffered evidence was not reviewed; and 6) otherwise specify the details of their investigation. The judge believes the above-referenced suggestions would “improve the system by requiring the Commission to be accountable and transparent.” Still, the judge recognizes that “my complaint is thoroughly confidential” and thus would “not disclose” information regarding the complaint he/she filed or otherwise breach confidentiality.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must “respect and comply with the law” (22 NYCRR 100.2[A]), and must always act to promote public confidence in the judiciary’s integrity and impartiality (id.). A judge’s judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]). A judge’s extra-judicial activities must therefore be compatible with judicial office and must not cast doubt on the judge’s impartiality, detract from judicial dignity, or interfere with judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge’s extra-judicial activities are subject to generally applicable limitations on judicial speech and conduct, including the rule against impermissible ex parte communications (see 22 NYCRR 100.3[B][6]), the public comment rule (see 22 NYCRR 100.3[B][8]), and limitations on political activity (see 22 NYCRR 100.5[A][1]).
In general, a judge may publicly support measures to improve the law, the legal system and the administration of justice (see e.g. Opinion 19-120 [discussing many prior opinions]). Thus, for example, a judge may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service, and may do so by (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to public officials, governmental bodies, and labor unions; (c) testifying at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee (id.). We have also advised that judges may express views supporting or opposing a funding increase for the Commission on Judicial Conduct in an upcoming budget year (see Opinion 18-185). Because the Commission “is a body constitutionally vested with authority to discipline judges, and thus has a role in maintaining public confidence in the judiciary,” we concluded that “the appropriate level of funding for the Commission is a matter concerning ‘the law, the legal system or the administration of justice’” (id.). Accordingly, we said a judge could comment on this subject with executive and legislative branch officials, whether in meetings or in writing (id.).
Of course, even when a judge is expressing his/her views on core matters concerning the law, the legal system or the administration of justice, he/she must abide by generally applicable limitations. For example, the judge must “respect and comply with the law” (22 NYCRR 100.2[A]); ensure that his/her advocacy does not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]); abide by the public comment rule (see 22 NYCRR 100.3[B][8]); and avoid impermissible political activity (see e.g. Opinions 13-17; 08-73).
There is an additional possible complication when a judge’s recommendations are based on his/her experience in filing a disciplinary complaint against another judge, and that complaint has not resulted in a published disciplinary decision. In that case, unless confidentiality has been waived, it is our view that the judge should not disclose information about his/her complaint that would breach confidentiality. Here, we note that the inquiring judge, presumably in accordance with confidentiality requirements under Judiciary Law § 45(1), has already advised that he/she will not disclose information regarding the disciplinary complaint he/she previously filed.
Accordingly, we conclude the inquiring judge may make recommendations concerning the Commission on Judicial Conduct which are intended to improve the law, the legal system or the administration of justice. Where the judge’s recommendations are based on his/her experience in filing a disciplinary complaint against another judge, the judge may not disclose information about his/her complaint that would breach confidentiality.