Opinion 08-114

June 6, 2008

Digest:         A judicial association may respond by letter to a public statement by the Commission on Judicial Conduct relating to the administration of justice, as long as the response does not comment on any pending or impending matter.

Rules:          Jud. Law 212(2)(l); 22 NYCRR 100.3[B][8]; 100.4[A]; 100.4[B]; 100.4[C][1]; Opinions 07-108; 99-37 (Vol. XVII).

Opinion:

         A judge who is an officer of a judicial association asks whether the association may respond to a recent and public “Statement by the New York State Commission on Judicial Conduct Regarding Judicial Compensation,” which the inquiring judge describes as “an advisory opinion on judges who recuse themselves in cases where legislators are litigants or lawyers.” The inquiring judge has drafted a letter on behalf of the judicial association responding to the Commission’s statement and has asked the Committee to review it. It is on the judicial association’s letterhead, addressed to the Commission. The letter expresses several concerns about the Commission’s statement and requests the Commission to publicly rescind it.

         The judge inquires whether it would be “ethical and appropriate” to send the association’s proposed letter to the Commission and to send a “confidential copy” to the Chief Judge and the Chief Administrative Judge. The Committee notes that the draft letter relates to the administration of justice and does not comment on any pending or impending matter (see 22 NYCRR 100.3[B][8]; 100.4[B]; 100.4[C][1]; Opinion 99-37 [Vol. XVII]). Sending the letter as proposed does not appear to interfere with proper and impartial judicial performance of judicial duties, nor detract from the dignity of judicial office (see 22 NYCRR 100.4[A]). Accordingly, the Committee concludes that there is no ethical prohibition against sending such a letter to the Commission, the Chief Judge and the Chief Administrative Judge. The Committee may not comment on whether it would be otherwise “appropriate” to send the proposed letter to the Commission, the Chief Judge, or the Chief Administrative Judges (see Jud. Law 212 [2][l]).

         The inquiring judge, who is not a member of the Commission on Judicial Conduct, further inquires whether judicial members of the Commission should recuse themselves from hearing disciplinary complaints of the type described in the Commission’s public statement. This Committee does not answer questions concerning the conduct of any judge other than an inquiring judge’s conduct (see Opinion 07-108).