Opinion: 98-77
June 19, 1998
Digest:    It is improper for a judge to write to the Appellate Division asking it to reconsider its decision in which it reversed a ruling in a proceeding before the judge

Rule:    22 NYCRR 100.2(A); 100.3(A)(8); 100.3(B)(6)


            The inquiring judge seeks the opinion of the Committee as to the ethical propriety of sending a letter to the Appellate Division expressing the judge's disagreement with the Appellate Division's reversal in an appeal from a proceeding that was before the inquirer. Attached to the inquiry is the proposed letter in which the judge sets forth in some detail reasons why, in the judge's view, the reversal was erroneous.
            The Committee is of the opinion that the sending of the letter would be ethically improper. First, a judge should not adopt the role of an advocate. Here, the judge is advancing arguments on behalf of a party to the proceeding whose interests were adversely affected by the appellate ruling. Seeking reconsideration of that decision is a matter for the aggrieved party to pursue, and not the judge. The sending of the letter by the judge, in our view, would erode "public confidence in the integrity and impartiality of the judiciary" in violation of section 100.2(A) of the Rules Governing Judicial Conduct. Second, the letter amounts to an ex parte communication and thus would violate section 100.3(B)(6) of the Rules. ("A judge shall not initiate . . . ex parte communications . . . concerning a pending or impending proceeding . . . .") Third, the letter could be regarded as public comment about a pending proceeding and therefore barred under section 100.3(A)(8) of the Rules. ("A judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories.")

            In the Committee's view, each of the grounds stated herein suffices to render the sending of the proposed letter impermissible as a matter of judicial ethics.