Opinion 19-133

December 12, 2019

Digest:         (1) A part-time attorney judge who is opposing a motion to remove him/her as an attorney in a pending case may respond to media questions concerning the motion in his/her capacity as an attorney, provided he/she makes no reference to his/her status as a judge.

(2) If the judge believes governing law prohibits him/her from providing certain details concerning the litigation, he/she may say so publicly.

(3) A judge who is running for election to judicial office may respond to personal attacks or attacks on his/her record in his/her capacity as a judicial candidate, provided the response is truthful and not misleading. Thus the judge may, for example, (a) share copies of ethics opinions he/she believes authorize the criticized conduct, (b) disclose the length of his/her employment as an attorney and a part-time judge, (c) disclose facts and circumstances concerning his/her seeking a judicial ethics opinion, and/or (d) explain how his/her conduct has been influenced and guided by such opinions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.5(A)(4)(d)(iii); 100.5 (A)(4)(e); Opinions 17-142; 13-09/13-52; 07-47.

Opinion:

       A part-time attorney judge is running for election to another judicial position. Opposing counsel in a pending case has filed a motion to remove him/her as an attorney in the matter due to purported ethical conflicts. A local media representative has asked the judge to comment on the allegations. The judge believes these questions are politically motivated and would like to “respond fully” concerning the alleged ethical conflict. However, the judge believes the case he/she is handling as an attorney is subject to certain confidentiality restrictions. The judge asks several questions about responding to media questions concerning the motion and allegations.

        A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories but may explain the procedures of the court (see 22 NYCRR 100.3[B][8]). A judge who is a candidate for election to judicial office may respond to attacks on his/her record (see 22 NYCRR 100.5[A][4][e]), provided he/she does not knowingly make any false statement or misrepresent the identity, qualifications, current position, or other fact concerning the candidate or an opponent (see 22 NYCRR 100.5[A][4][d][iii]).

       We have said a part-time attorney judge may respond to media inquiries concerning a client’s pending case in his/her capacity as a lawyer, with absolutely no reference to the fact that the attorney also serves as a judge (see Opinions 13-09/13-52; 07-47; 22 NYCRR 100.2[C]). We explained that “[a]ny invocation of the fact that the attorney also serves as a judge could readily be perceived as lending the prestige of judicial office to advance the interests of the client and of the judge as a lawyer, and is therefore prohibited” (Opinion 07-47). The same analysis applies here. Accordingly, this judge may respond to media inquiries concerning the motion in his/her capacity as an attorney, provided he/she does not refer to his/her judicial status.

       The judge further asks if he/she may advise the media that the underlying court case is “a family court matter governed by confidentiality” and thus he/she “cannot disclose specifics.” While we cannot address the validity of the judge’s legal conclusion, if the judge believes governing law prohibits him/her from divulging details about the litigation, he/she may say so publicly.

       Finally, as the judge believes certain allegations are arising during his/her judicial campaign for political reasons, the judge asks if he/she may respond to them. In particular, the judge would like to (1) disclose the respective lengths of his/her employment as a part-time judge and as an attorney and (2) share copies of ethics opinions the judge believes authorize his/her conduct. We conclude the judge may, in his/her capacity as a judicial candidate, “respond to personal attacks or attacks on [his/her] record” (22 NYCRR 100.5[A][4][e]), provided the response is truthful and not misleading (see 22 NYCRR 100.5[A][4][d][iii]; Opinion 17-142). We further note the judge may also, in his/her sole discretion, disclose any facts and circumstances concerning his/her seeking a judicial ethics opinion, any opinions he/she may have received, and explain how his/her conduct has been influenced and guided by such opinions.