Opinion 16-127

September 8, 2016

Digest:         A judge serving on an official court-sponsored legislative advisory committee may participate in committee discussions relating to the judge’s recent decision in an ongoing proceeding.

Rules:          Judiciary Law §§ 212(1)(f)-(g); 212(1)(q); 212(2)(l); 22 NYCRR 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.3(E)(1); 101.1; Opinions 16-62; 15-100.

Opinion:

         The inquiring judge serves on an official court-sponsored legislative advisory committee established to assist the Chief Administrative Judge “in the execution of the functions of [his/her] office” (Judiciary Law § 212[1][q]).¹ Committee membership includes some outside attorneys who are not court employees. The judge recently issued a pre-trial decision which is relevant to the legislative advisory committee’s work and, more specifically, to a possible legislative proposal the judge would like to discuss with his/her fellow committee members.² The judge asks if he/she may make the proposal and discuss his/her recent decision within the committee, while the underlying proceeding is still pending before the judge.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and may not publicly comment about a pending or impending case in the United States or its territories, unless an exception applies (see 22 NYCRR 100.3[B][8]; see also e.g. Opinion 15-100 [discussing the rule’s extensive reach]). Of particular note here, the public comment rule “does not prohibit judges from making public statements in the course of their official duties” (22 NYCRR 100.3[B][8]; Opinion 16-62).

           In essence, the Chief Administrative Judge or his/her designee has appointed this judge, in his/her official capacity, to serve on a committee with other judges and lawyers to provide their views on legislative proposals the Chief Administrative Judge may wish to make on behalf of the Unified Court System. Therefore, the judge’s participation on the committee, including internal committee discussions, is part of the judge’s official duties for purposes of the public comment rule.

         Because the judge’s participation on this official court-sponsored legislative advisory committee is squarely within the exception to the public comment rule (see 22 NYCRR 100.3[B][8]; Opinion 16-62), the judge may participate in committee discussions relating to the judge’s recent decision in an ongoing proceeding.

         The Committee trusts the judge will not, even during internal committee discussions, make comments that cast reasonable doubt on his/her ability to preside impartially in the matter (see generally 22 NYCRR 100.2[A]; 100.3[E][1]), or invite impermissible ex parte communications (see 22 NYCRR 100.3[B][6]).

         Finally, whether the judge may disclose to the litigants that the committee discussion has taken place is a legal and/or administrative question regarding the confidentiality of the committee’s deliberations. Accordingly, the Committee cannot address this issue (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]).

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         ¹ For example, among other functions, powers and duties, the Chief Administrative Judge may “make recommendations to the legislature and the governor for laws and programs to improve the administration of justice and the operation of the unified court system” (Judiciary Law § 212[1][f]) and “recommend changes” to “the civil practice law and rules and the criminal procedure law” (Judiciary Law § 212[1][g]).

         ² The possible legislative proposal, if adopted, “would not have any impact on” the case before the judge.