Opinion 13-86

June 14, 2013

Digest:         Subject to certain limitations, a judge may provide head note style information about a judicial decision when submitting it to a law journal for possible publication.

Rules:          22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(8); Opinions 13-06; 12-146.

Opinion:

         The inquiring judge states that he/she has sent a decision to a law journal for possible publication.¹ According to the judge, the law journal requests that the judge provide “a sentence or two ... describing why the decision might be of interest.” The judge asks whether it is ethically permissible to accede to this request in light of Opinion 12-146, which states that a judge “should not comment in any way about” his/her decision when sending it to a newspaper for publication, “including in his/her cover letter to the newspaper.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Of particular import here, a judge is prohibited from making any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]).²

         In Opinion 12-146, the inquiring judge asked whether he/she could “mail a copy of his/her recent decision dismissing an accusatory instrument for facial insufficiency to a local newspaper.” That is, the judge sought to have his/her decision published in a general circulation newspaper, rather than in a law journal or other legal publication that routinely solicits and accepts judicial decisions for publication. Thus, the comments that the inquiring judge wished to make, as set forth in Inquiry 12-146, would have been directed to explaining the local significance or newsworthiness of the opinion for a lay audience, rather than to providing the kind of specialized head note type information that lawyers and judges need to get “a sense of the overall development of the law in a certain area” (Opinion 13-06 n. 1). Therefore, the Committee advised that the judge “should not comment in any way about the decision, including in his/her cover letter to the newspaper” (Opinion 12-146).

         In contrast, in Opinion 13-06 the Committee addressed the scope of permissible public comment in the context of writing or editing a pocket part update to a legal treatise. The Committee noted that, given the purpose of a legal treatise, “it is generally not sufficient to provide citations to new cases without some brief description of their significance or relevance so that readers can determine whether they wish to review the opinion” (Opinion 13-06 n. 1). In effect, the Committee concluded, the author “is preparing the functional equivalent of head notes, which help readers find relevant opinions but are not intended to substitute for, or comment on, the opinions themselves” (id.). The Committee offered the following guidance on how to discuss cases which are still “pending or impending” within the meaning of the Rules, i.e., if the matter has not been finally resolved and the time for appeal has not yet been exhausted (Opinion 13-06):

[M]inimal and essentially factual commentary on changes in the law in the context of updating a legal treatise – indicating the nature and extent of changes, unresolved questions, any regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision - does not constitute impermissible public comment within the meaning of the Rules, provided that the writer does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them (see 22 NYCRR 100.3[B][8]).

         In the Committee’s view, sending a judicial decision to a law journal for publication is far more analogous to publishing a legal treatise than sending a decision to a general circulation newspaper. In both cases, the ultimate audience is legal professionals who will need to get “a sense of the overall development of the law in a certain area” (Opinion 13-06 n. 1). Moreover, the law journal editors who decide which opinions to publish are likely to have the legal sophistication, whether by training or experience, to make appropriate use of such “head note” type information. Indeed, the Committee notes that if the law journal receives many judicial decisions for possible publication, it will surely not be sufficient to provide the decision “without some brief description of [its] significance or relevance so that [the editors] can determine whether they wish to [publish] the opinion” (cf. Opinion 13-06 n. 1).

         Therefore, the Committee concludes that the judge may provide “minimal and essentially factual” head note style information about a decision when submitting it to a law journal for possible publication. For example, a judge might state that the opinion deals with a particular legal issue; or that it addresses a matter of first impression; or that it disagrees with prior opinions. Similarly, a judge might note certain “unresolved questions, ... regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision” (Opinion 13-06).

         In doing so, however, the judge must not comment on the testimony or evidence in the case, or otherwise seek to explain or justify his/her decision, as this would constitute impermissible public comment while the case remains pending or impending (see 22 NYCRR 100.3[B][8]). The judge must allow the decision to speak for itself with respect to all such matters.

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     ¹ The judge notes that the decision “is not sealed, has been mailed to the parties and has been submitted to the State Reporter for publication.”

     ² A “pending proceeding” is “one that has begun but not yet reached its final disposition” (22 NYCRR 100.0[U]), while an “impending proceeding” is “one that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]). Thus, a case remains “pending or impending,” if it “has not been finally resolved and the time for appeal has not yet been exhausted” (Opinion 13-06).