Opinion 20-81(B)

June 18, 2020

Digest:       A part-time judge may appear as legal commentator/analyst on television or online streaming shows, provided he/she does not comment on any pending or reasonably foreseeable cases in the United States or its territories.

Rules:        22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(8); 100.6(B)(4); Opinions 15-100; 11-100; 10-102; 00-106; 93-133; 89-146; 88-133; 88-106.

Opinion:

         A part-time judge asks if he/she may appear as a legal commentator/analyst on television or online streaming shows.

         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” (22 NYCRR 100.3[B][8]). Subject to these and other limitations, a part-time judge may accept private employment, “provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties” (22 NYCRR 100.6[B][4]).

         We have said a judge may host a regularly scheduled television show about the law, including court procedures (see Opinion 89-146) and may appear monthly on a local television news broadcast to answer questions about a predetermined topic relating to the criminal justice system, subject to the public comment rule and other limitations (see Opinion 10-102).

         The rule prohibiting public comment on “pending or impending proceedings” within the United States or its territories requires some discussion. Of particular note, a proceeding is “impending” when it is “reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]). As explained in Opinion 15-100 (citations omitted):

The ban on public comment on pending or impending proceedings is very broad because “a matter remains ‘pending or impending’ at least until the time for appeals has expired and often longer,” that is, “as long as any appeal or collateral proceeding in the case is pending or likely.” Indeed, the Committee 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.’”

Thus, while we said a part-time judge may be employed full-time as a news reporter, we nonetheless advised that the judge “may not cover cases that are pending or impending in any court in the United States or its territories, as it would be difficult, if not impossible, to comply with the rule prohibiting public comment” (Opinion 11-100). We also said a judge may not participate as a commentator on a television program in which the judge would make observations and offer comments on non-New York actions, which had been telecast in whole or in part, that day (see Opinion 93-133). In addition, we have advised that a judge may not appear on a television program in which he/she will be asked questions concerning the strength of the United States government’s case against a particular federal prisoner, and which will also include the judge’s assessment of the credibility of witnesses who testified in the trial (see Opinion 00-106).

         We thus conclude a part-time judge may appear as legal commentator/analyst on television or online streaming shows, subject to significant limitations. Clearly, the work “cannot take place at a time that would interfere with the judge’s regular judicial duties” (Opinion 88-106) and must not signal a predisposition with respect to particular cases or cast doubt on the judge’s impartiality (see Opinions 89-146; 88-133). Moreover, the judge must be careful not to comment on pending or reasonably foreseeable cases in the United States or its territories. Again, we emphasize that, even if the trial in a particular case is concluded and a decision has been rendered, the judge must not comment if any appeal or collateral proceeding is pending or likely (see Opinions 15-100; 11-100; 10-102; 22 NYCRR 100.3[B][8]).