Opinion 08-19

January 31, 2008

Digest:         Subject to the Rules Governing Judicial Conduct, a judge may, in response to a subpoena, testify at a public hearing of the State Commission of Investigation about what the judge has observed in a certain class of cases.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(B)(6)(e); 100.3(B)(8); 100.3(D); 100.3(E)(1); 100.4(A)(1); 100.4(C)(1); Opinions 88-85/88-103 (Vol. III); 88-155 (Vol. III); 91-82 (Vol. VIII); 93-06 (Vol. X); 93-22 (Vol. XI); 95-148 (Vol. XIII); 98-126/98-129 (Vol. XVII); 99-115 (Vol. XVIII); 00-65 (Vol. XIX); 01-25 (Vol. XIX); 03-110. Matter of McKeon (1999 N.Y. Commn on Jud Conduct, at 117).

Opinion:

         Some judges privately contacted the Chair of the State Commission of Investigation (Commission) about factual observations they made while presiding in a certain class of cases. The Commission Chair has asked an administrative judge if, pursuant to subpoena, these judges could testify at a public hearing about their observations. The administrative judge, on these judges’ behalf, now asks if it would be improper for them to so testify regarding such Commission investigations, and what ethics restrictions would apply to their testimony.

         Although a judge must take appropriate action upon learning of a substantial likelihood that a judge or lawyer has committed a substantial violation of the Rules Governing Judicial Conduct or the Code of Professional Responsibility (see 22 NYCRR 100.3[D]), a judge is not required to report any misconduct or criminal activity by persons other than judges or lawyers that comes to the judge’s attention during the performance of his/her judicial duties (see Joint Opinion 88-85/88-103 [Vol. III]; see also Opinions 93-22 [Vol. XI]; 03-110. A judge may, however, do so in his/her discretion (id.). The judges in question, therefore, are permitted to advise the Commission of any apparent misconduct or criminal activity that they have observed.

         Full-time judges generally are prohibited from appearing at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]). It is therefore permissible for the judges who are the subject of the present inquiry to testify before the Commission about their observations relating to a certain class of cases. Such testimony is, however, subject to other provisions of the Rules Governing Judicial Conduct.

         With respect to providing testimony pursuant to a subpoena, this Committee previously has advised that a judge should comply with a valid subpoena issued by a competent tribunal, as all judges must maintain high standards of conduct, and must respect and comply with the law (see 22 NYCRR 100.1; 100.2[A]; see also Opinion 99-115 [Vol. XVIII]).

“A judge as a witness is no different from any other witness and enjoys all of the rights, duties and obligations as set forth in CPLR Article 23. The judge must respond to the subpoena (CPLR section 2301) and is subject to sanctions for disobeying such a mandate (CPLR section [2308]). If the judge feels that the subpoena should be quashed, modified or conditioned, CPLR 2304 provides the means for relief” (Opinion 88-155 [Vol. III]).

         Subject to the same qualifications, the judges involved in the present inquiry also should comply with a valid subpoena or other legal mandate issued by the Commission (see Opinions 88-155 [Vol. III]; 91-82 [Vol. VIII]; 99-115 [Vol. XVIII]).

         Whether ethics questions might arise during such testimony, or in preparing therefor, will of course depend on the circumstances. For example, should a judge’s observations concern a case still pending in the judge’s court, or a case where the time to appeal has not yet expired, or a case that is pending appeal, the judge must be cognizant of the prohibition against making public comments about pending or impending cases (see 22 NYCRR 100.3[B][8]).

         The Committee has stated in contexts different from, but relevant to, the present inquiry, that a judge who discusses a case in a public setting should not refer to a specific pending case except as to facts of record (see e.g. Opinion 93-06 [Vol. X] [a judge may discuss with State Legislators a complaint lodged against the judge with the Commission on Judicial Conduct arising from an underlying case still pending before the judge, provided that the judge limits any reference to that case to the facts of record]). The Committee believes that under the circumstances now presented, a judge may describe generally or collectively the judge’s observations in cases (some of which may be pending) without referring to a particular case (see Opinion 01-25 [Vol. XIX] [a judge may be interviewed by attorneys for the plaintiff in a lawsuit regarding funding for 18-b lawyers, to the extent that the interview “is to consist of a recitation by the judge of his or her observations in the court, and a description of the practices and procedures of the judge’s court,” and the judge avoids commenting on any pending or impending proceeding]). If the public interest requires reference to a particular case that is still pending in the trial court or pending appeal, such testimony should be limited to the extent possible to a brief, objective, and precise description of facts of record, without comment (cf. Opinion 00-65 [Vol. XIX]; see also Matter of McKeon [1999 N.Y. Commn on Jud Conduct, at 117]).

         Judges also are precluded by the Rules Governing Judicial Conduct from initiating or considering ex parte communications, or considering other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding before the judge, except when authorized by law to do so (see 22 NYCRR 100.3[B][6][e)). In the Committee’s view, the exception to the general prohibition against engaging in ex parte communications, i.e. when authorized by law, permits judges to testify at a duly authorized public hearing in compliance with a lawful subpoena, after lawful administration of an oath, and in response to a lawful question. A judge also may participate in a pre-hearing interview to prepare for such testimony so long as he/she refers only generally or collectively to situations he/she observed, and does not refer specifically to a pending case (see Opinions 01-25 [Vol. XIX]; 91-82 [Vol. VIII]).

 When testifying, a judge should avoid statements about the merits of a case and statements that cast doubt on his/her impartiality or indicate a predisposition to decide cases in a certain way (see 22 NYCRR 100.4[A][1]; Joint Opinion 98-126/98-129 [Vol. XVII]; see also 01-25 [Vol. XIX]). Also, the judge should not become involved in partisan political controversy (see Opinion 93-22 [Vol. XI]). Testimony or pre-testimonial interviews growing out of a pending case may, depending on the circumstances, require disclosure to the parties in a pending case, or recusal (see 100.3[E][1]; Opinion 88-155 [Vol. III]; 95-148 [Vol. XIII]).

“The question…whether there are particular legal objections to the judge’s testimony…is, of course, not before the Committee and is left to…the judge and the tribunal” (Opinion 99-115 [Vol. XVIII]).