Opinion 04-01

January 29, 2004

Digest:         A judge should not allow an attorney on his or her staff to appear as a periodic guest commentator for a television station in conjunction with the coverage of live trials or of video-tapes of completed trials where the matter may still be pending.

Rule:            22 NYCRR 100.3(B)(8); Opinions 00-106 (Vol. XIX); 93-133 (Vol. XII).

Opinion:

         A full-time judge inquires whether there is any ethical impediment to an attorney on the judge’s staff accepting an offer to appear as an occasional (approximately six appearances a year) unpaid guest commentator/trial analyst for a television station that airs coverage of either live trials or video-tapes of completed or ongoing trials. Such programming would involve the solicitation of comments and opinions on trial strategy from the guest commentator based on the guest’s experience as a former prosecutor and without any reference whatsoever to the guest’s current position.

         This question appears to be covered by section 100.3(B)(8) of the Rules Governing Judicial Conduct which provides, in part, as follows:

A judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories. The judge shall require similar abstention on the part of court personnel subject to the judge’s direction and control.

         The import of this provision is that the attorney is proscribed from engaging in the same activities in this area as the judge, and this would include participation in programs that are likely to advance positions on controversial subjects such as crimes that have received a great deal of public notoriety. See Opinions 93-133 (Vol. XII); 00-106 (Vol. XIX).

         While judges are not prohibited from participating in media programs “explaining for public information the procedures of the court” (22NYCRR 100.3[B][8], it is apparent that the comments likely to be elicited from the judge’s attorney will not be restricted to the permissible non-controversial, informational areas contemplated by the Rule. Further, it appears likely that the cases to be discussed will be pending or, even where a trial has ended, remain pending in some respect, e.g. appeals, collateral proceedings, parole hearings, etc.

         Moreover, the fact that the attorney’s present position would not be cited on the program does not alter the prohibition. As stated in Opinion 00-106 (Vol. XIX), “[i]t is of no significance that the inquirer is not being publicly identified as a judge. Surely, there will be viewers who know the inquirer’s judicial status and, in any event, there is no way to prevent a later publicizing of this fact.” The same considerations apply to the attorney. Accordingly, the judge should not permit the attorney to appear as a guest commentator under the circumstances presented.