September 11, 1997
Digest: An association
of judges should not communicate with the Court of Appeals regarding the
Court of Appeals' review of a determination of the State Commission on
Judicial Conduct that a judge (who is a member of the association), should
be removed, and should not make public statements, oral or written, recommending
that the judge not be removed; nor may individual judges engage in such
22 NYCRR 100.2(C),
Opinions 95-75 (Vol. XIII),
90-156 (Vol. VI), 89-73 (Vol. III),
89-04 (Vol. III), 88-63 (Vol. II).
An association of judges states that the New York State Commission on Judicial Conduct ("Commission") has rendered a determination that a judge, who is a member of the association, be removed from office, and inquires as to the propriety of its expression of its hope that the Court of Appeals will not accept the sanction of removal. Specifically, the association inquires whether it may communicate with the Court of Appeals during the Court of Appeals' review of the Commission's determination, in order to express the association's viewpoint. The association also inquires whether it may issue public statements in this respect. Further, the association asks whether individual judges may engage in the conduct referred to above.
Section 100.2(C) of the Rules Governing Judicial Conduct states that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others ....". This section also provides that "[a] judge shall not testify voluntarily as a character witness".
As a general matter, these rules prohibit judges from intervening, without official solicitation, in judicial or administrative proceedings involving professional or criminal misconduct (See, Opinion 95-75 (Vol. XIII) [judge should not voluntarily write letter in support of disbarred attorney seeking readmission]; Opinion 90-156 (Vol. VI) [judge should not voluntarily write character reference in support of attorney under investigation by the disciplinary committee of one of the Appellate Divisions]; Opinion 89-73 (Vol. III) [judge should not voluntarily write character reference in support of lawyer awaiting sentencing or on behalf of disbarred lawyer seeking reconsideration]; Opinion 89-04 (Vol. III) [judge should not voluntarily write letter in support of former law clerk in connection with plea bargain in pending criminal prosecution]; Opinion 88-63 (Vol. II) [judge should not voluntarily write letter to probation department on behalf of a suspended court employee]).
The Committee sees no basis for drawing a distinction in a case where the subject of the charges of misconduct is a judge. Further, the Committee is of the view that the prohibition noted above applies to judges individually as well as to an association of judges acting collectively and that the prohibition applies to oral statements made in a public context, as well as written ones.