Opinion 13-82

June 13, 2013

Digest:         A judge may not teach a law school course on the prosecution of a highly publicized local criminal case, where the criminal trial recently occurred in the judge’s jurisdiction and a related civil case is pending.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8);100.4(A)(1)-(3);100.4(B); Opinions 12-126; 11-77; 10-206; 10-189; 10-153; 04-110; 01-03 (Vol. XIX);95-105 (Vol. XIII).

Opinion:

         A judge asks if he/she may teach a law school course devoted solely to an in-depth analysis of a high-profile prosecution, involving “legal, constitutional, strategic, evidentiary, [and] advocacy” aspects of an extensively publicized criminal trial that occurred in the judge’s jurisdiction. The inquiring judge did not preside over the criminal matter, and the judge notes that the time for appeal has elapsed and no appeal was filed. However, a related civil case is ongoing in the same general vicinity of the judge’s court and the law school.

         A judge must avoid even the appearance of impropriety in all his/her activities (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extrajudicial activities such as teaching (see 22 NYCRR 100.4[B]), provided that such activities are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Further, a judge must not publicly comment on a pending or impending proceeding in any court in the United States or its territories (see 22 NYCRR 100.3[B][8]).

         A matter “remains ‘pending or impending’ at least until the time for appeals has expired and often longer” (Opinion 10-153; compare Opinion 04-110 [a judge may publicly comment on a criminal matter where the appellate process and post-conviction challenges to the conviction had been exhausted and there had been no litigation involving the matter for five years]). In Opinion 10-206, the Committee explained:

A “pending proceeding” is one that has begun but has not yet reached final disposition, and an “impending proceeding” is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U], [V]). A matter is “pending or impending,” even after the original trial is complete as long as any appeal or collateral proceeding in the case is pending or likely (see Opinion 99-113 [Vol. XVIII]; see also Opinion 04-01 [judge may not publicly discuss cases that “remain pending in some respect, e.g. appeals, collateral proceedings, parole hearings, etc.”]; Joint Opinion 98-126/98-129 [Vol. XVII] [judge may not publicly comment on portions of a pending matter that have become moot as long as the case itself remains pending]).

Applying these principles, the Committee advised that a judge must not “publicly discuss any aspect of [a] high-profile criminal prosecution which, although technically closed, has now resulted in civil litigation in federal court. This prohibition lasts as long as the related civil litigation is pending or impending” (Opinion 10-206).

         The Committee has carved out a well-established but very narrow exception to the public comment rule when a judge is teaching a regular course of study at a law school or college (see Opinions 12-126; 10-189; 95-105 [Vol. XIII]; see also Opinions 11-77 [noting that “this exception has been strictly limited to those situations where the judge is a teacher of a regular course of study,” and does not apply to CLE programs]; 01-03 [Vol. XIX] [the exception does not apply to a panel discussion at a national conference on the jury system]).

         When the exception applies, the Committee has consistently advised that commenting on cases pending in other jurisdictions may be unavoidable and is permissible (see Opinions 12-126; 10-189; 95-105 [Vol. XIII]). However, a judge must nonetheless “refrain from making gratuitous and unnecessarily controversial statements about pending cases” (Opinions 10-189; 95-105 [Vol. XIII]) and must “avoid any discussion of cases pending within the general jurisdictional locale of the judge's court and the college campus” (Opinion 95-105 [Vol. XIII]; see also Opinions 12-126; 10-189).

         Here, the proposed subject of the law school course is the analysis of a single, controversial criminal case within the general jurisdictional locale of the judge's court and the college campus. It is therefore impermissible for the judge to teach the proposed course while the matter is still “pending” within the meaning of the Rules Governing Judicial Conduct (see Opinions 12-126; 10-189; 95-105 [Vol. XIII]). While the criminal trial was completed and the time for appeal has apparently elapsed, a closely related civil case is pending in the same jurisdictional locale where the judge presides and the law school is located (see Opinion 10-206). The inquiring judge therefore must not teach the proposed law school course analyzing the criminal case while the closely related civil case remains pending (see Opinions 12-126; 10-206; 10-189).