Opinion 21-24
March 11, 2021
Digest: On these facts, a judge may not participate in an interview with a local news station regarding the experiences of the judge’s first-degree relative at a local nursing home.
Rules: 22 NYCRR 100.0(V); 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); Opinions 18-74; 15-193; 11-100; 99-54.
Opinion:
A part-time judge asks if they may participate in an interview with a local news station regarding the experiences of the judge’s first-degree relative1 at a local nursing home. The judge would be interviewed as a family member, not as a judge. As part of an ongoing series on eldercare and nursing homes, the news station is reporting on a long-term care facility that operates several nursing homes, including a non-local one that has been the subject of several complaints and the local one where the judge’s relative was a patient. Although the judge is not aware of any pending litigation or governmental investigation involving the local nursing home, the judge’s relative experienced similarly poor treatment. Thus, the judge’s comments would not be positive. According to the judge, the purpose of the interview is to “bring awareness and to get other people who have experienced the same thing to speak up.”
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 may participate in extra-judicial activities provided they are not incompatible with judicial office and they do not cast reasonable doubt on the judge’s capacity to act impartially, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge’s participation is also subject to all applicable limitations on judicial speech and conduct, including the rule against impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and the public comment rule (see 22 NYCRR 100.3[B][8]). Moreover, a judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).
On these facts, we conclude the judge may not participate in a news interview concerning the nursing home’s performance. The judge’s participation could readily be seen as lending of the prestige of judicial office to advance private interests (see Opinion 99-54 [while the posting on a nursing home bulletin board of a judge’s letter complimenting the staff for the care given to the judge’s parent is permissible, the distribution of such a letter to prospective residents or the public is improper as such would violate the rule that forbids the lending of the prestige of judicial office to advance the private interests of others]; see also Opinion 15-193 [a judge may write a letter thanking the director of a federally funded medical facility for care provided to the judge’s parent, but may not send the letter to federal legislators who may vote to fund the facility as such an action would make it “virtually impossible to avoid an appearance that the judge was promoting the medical facility’s interests and/or lending the prestige of judicial office to influence federal appropriations”]).
Further, we believe that participation in the interview could violate the public comment rule. A judge may not comment publicly on a pending or impending proceeding in any court within the United States or its territories unless an exception applies (see 22 NYCRR 100.3[B][8]). An “impending proceeding” is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[V]). While the inquiring judge is not aware of any litigation or governmental investigation involving the local nursing home, the judge is aware of complaints against another nursing home operated by the same long-term facility and acknowledges that one of the purposes of the interview is to get members of the public to “speak up” about similar experiences. Because litigation is reasonably foreseeable, we conclude that the judge’s participation in this interview is impermissible (cf. Opinion 11-100 [a part-time judge may cover topics of local interest as a reporter, but must not comment on pending or impending proceedings or cast doubt on the judge’s capacity to decide issues impartially]).2
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1 A first-degree relative includes the parent or child of the judge or their spouse, or the spouse of such person.
2 We note that, even if the judge becomes “a litigant in a personal capacity” (22 NYCRR 100.3[B][8]) in a lawsuit concerning the local nursing home, the judge would still need to exercise caution in commenting publicly on the lawsuit and underlying allegations (see e.g. Opinion 18-74).