Opinion 10-102

September 16, 2010

Please Note: This opinion has been modified by Joint Opinion 17-163/18-03/18-21, to the extent it suggests that a full-time judge may not appear on a news program if his/her appearance on the program will be advertised or promoted.

Digest:         A judge may appear monthly on a local television news broadcast to answer questions about a predetermined topic relating to the criminal justice system, subject to certain limitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.3(B)(8); Opinions 10-24; 09-98; 03-65; 95-94 (Vol. XIII); 89-146 (Vol. IV); 88-106 (Vol. II).

Opinion:

         A judge asks whether he/she may appear monthly on a local news broadcast to answer questions about a predetermined topic relating to the criminal justice system. The judge acknowledges that he/she cannot discuss any pending or impending proceedings and advises that “. . . [he/she] could ensure that [he/she] would not be talking about a pending or impending proceeding . . . [he/she] would change the topic on purpose to avoid the implication that [he/she] was talking about a pending or impending case.” The judge further advises that his/her appearance will not be advertised or promoted.

         A judge may engage in extra-judicial activities as long as they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Specifically, a judge may speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). Therefore, a judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), including refraining from making public comments about pending or impending proceedings in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]). However, a judge may explain for public information the procedures of the court (see id.).

         The Committee previously has advised that, subject to certain limitations, a judge may appear on a television talk show to discuss legal matters (see Opinion 88-106 [Vol. II])¹ ; host a regularly scheduled television show about the law, including court procedures (see Opinion 89-146 [Vol. IV]); host a talk show on a local non-commercial public access station during which various topics are the subject of discussion (see Opinion 95-94 [Vol. XIII]); and appear one time on a weekly radio show hosted by a local attorney to explain what the Integrated Domestic Violence Court is and how it operates, even though the radio host regularly appears before the judge (see Opinion 09-98). In Opinion 88-106 (Vol. II) the Committee cautioned that a judge’s presentation on various legal topics on a television talk show should be factual and instructive about the procedures and parameters of the particular subject and should not include comments about any pending matters.

         Therefore, it is the Committee’s view that the inquiring judge may appear monthly on a local news broadcast to answer questions about a predetermined topic relating to the criminal justice system subject to the limitations he/she describes and those set forth in the prior opinions cited above.

         Whether the local broadcaster is a public or commercial station is irrelevant to the outcome of this inquiry. The Committee does not view monthly appearances on a local news program on a commercial television station as prohibited "active participa[tion]" in a business entity (see 22 NYCRR 100.4[D][3]), where the inquirer indicates that his/her appearance on the program "would not be advertised nor would it be promoted" (cf. Opinion 03-65 [judge may write for a commercial legal publishing company, but must ensure that the publisher does not engage in any marketing or other activity that can reasonably be perceived to exploit the judge's judicial position]).

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    ¹ Opinion 88-106 (Vol. II) cites an earlier version of 22 NYCRR 100.4(B) which provided as follows: A judge may speak, write, lecture, teach and participate in other activities concerning the law, the legal system, and the administration of justice.