Opinion 14-26

March 13, 2014

Digest:         Under these specific, limited circumstances, a judge may attend a CLE education program where the judge’s decision on a novel legal issue will be discussed, even if the matter remains pending or impending, but the judge may not write a law review article in which he/she discusses the rationale behind the decision as well as its potential impact on future decisions.

Rules:          22 NYCRR 100.0(U), (V); 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 14-09; 13-86; 13-32; 13-06; 10-153; 07-126; 01-53 (Vol. XX); Joint Opinion 98-126/98-129 (Vol. XVII); Opinion 90-67 (Vol. V).

Opinion:

         A judge who issued a decision on a novel legal issue asks whether he/she may attend a continuing legal education program at which the judge’s decision will be discussed, along with a small number of other opinions on the same subject. The judge also asks whether he/she may “write a law review article discussing the reasoning behind the decision and its potential impact” on future decisions in other areas of law. The judge does not know whether the decision has been appealed but notes that he/she now presides in another court and will not be assigned to the case if there are any subsequent proceedings in the matter.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]), and may engage in extra-judicial activities, including writing, that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]). However, 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]). 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]; see also Opinion 13-06 [noting that a case remains “pending or impending” if it “has not been finally resolved and the time for appeal has not yet been exhausted”]).

1. Educational Program

         Ordinarily, a judge may attend bar association functions and continuing legal education programs, even if they relate to legal issues that may come before the judge (see 22 NYCRR 100.3[B][1] [judges must “maintain professional competence” in the law]; Opinion 07-126 [“participation in bar associations and other legal organizations is to be encouraged”]; cf. Opinion 13-32 [judge may obtain the advice of a disinterested expert on the law with respect to a legal issue that is not currently before the judge but which the judge anticipates may come before him/her in the future]).

         The Committee believes that the circumstances presented here, unlike those addressed in Opinion 14-09, do not require any variation from the general rule. Although the inquiring judge’s case addresses a novel legal issue and will be one of a small number of cases discussed at the continuing legal education program, there is no indication that the speakers have any personal or professional involvement with the specific case that was before the judge, let alone “strong connections ... to one side” (Opinion 14-09). Moreover, it is a significant fact that even if the case is not fully concluded, there is little risk of any possible appearance of impropriety where, as here, the inquiring judge will not preside over any further proceedings in the matter (cf. Opinion 14-09).

2. Law Review Article

         With respect to the judge’s proposal to “write a law review article discussing the reasoning behind the decision and its potential impact” in other areas of law beyond those in which it has initially appeared, the Committee believes that this is impermissible.

         The Committee has previously advised that judges may “write and publish books, articles, manuals, columns and commentaries about the law,” subject to certain limitations (Opinion 10-153). For example, a judge must “avoid commenting on matters of substantial public controversy which may detract from the dignity of judicial office, interfere with the performance of judicial duties, or undermine public confidence in the judge’s ability to remain impartial” (id.).

         For the purposes of the ban on public comment (see 22 NYCRR 100.3[B][8]), as previously noted, a matter remains “pending or impending” at least until the time for appeals has expired and often longer (see e.g. Opinions 13-06; 01-53 [Vol. XX]). The Committee also has advised that a judge may not comment even on previously decided aspects of a matter that have been rendered moot, because the “case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment” (Joint Opinion 98-126/98-129 [Vol. XVII]). More recently, the Committee advised that (Opinion 136):

minimal 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 (citation omitted).

         Finally, the Committee has also advised that a judge may refer to his/her own previous decisions, provided the matter is no longer pending or impending, “but the discussion should not go beyond the published decision” (Opinion 90-67 [Vol. V]; cf. Opinion 13-86 [a judge must not “seek to explain or justify his/her decision, as this would constitute impermissible public comment while the case remains pending or impending. The judge must allow the decision to speak for itself...”(citation omitted)]).

         Here, the inquiring judge proposes to write a law review article about his/her prior published decision, at a time when the case may still be pending or impending within the meaning of the Committee’s prior opinions (see Opinion 13-06), and further proposes to “go beyond the ... published decisions” (Opinion 90-67 [Vol. V]) to discuss or elaborate on the reasoning behind the decision. Moreover, the judge does not propose to make “minimal and essentially factual commentary” in the style of a headnote (Opinion 13-06) or to limit his/her comments to “an objective description of matters of record in cases that are no longer pending” (Opinion 10-153), but, instead, proposes to explore the “potential impact” of his/her decision on future cases in other areas of law.

         Under the circumstances presented, therefore, the Committee believes the proposed law review article would create an appearance of impropriety and is, therefore, impermissible (see generally Opinions 13-86; 13-06; 10-153; 90-67 [Vol. V]; 22 NYCRR 100.2; 100.3[B][8]).