Opinion 23-112
September 7, 2023
Digest: (1)
A full-time judge seeking a post-judicial retirement professorship at a private
law school may participate in the application process by submitting a research
agenda, giving a “job talk” presentation, and interviewing with different
segments of the law school community, subject to generally applicable
limitations on judicial speech and conduct.
(2) The “academic exception” to the public comment rule applies when a judge is
applying for employment as a full-time law professor, and therefore the judge
may discuss pending or impending cases in other jurisdictions.
(3) With respect to pending or impending cases in the judge’s jurisdiction,
the judge may, during the application process, (a) respond to questions by
guiding a discussion that seeks to examine all sides of an issue without
offering a personal opinion or predicting how the matter should or will be
decided and/or (b) provide minimal and essentially factual commentary on
changes in the law by noting the nature and extent of changes, unresolved
questions, regional differences, and procedural impacts that are clear on the
face of the decision, provided the judge does not resolve ambiguities or
otherwise interpret the opinions described and does not express subjective
praise or criticism of them.
Rules: 22 NYCRR 100.0(V); 100.1; 100.2; 100.2(C); 100.2(A); 100.3(B)(8); 100.4; 100.4(A)(1)-(3); Opinions 23-59; 23-02; 20-176; 20-31; 13-06.
Opinion:
A full-time judge would like to apply for post-judicial employment as a professor at a private law school. The law school requires applicants to submit a research agenda, give a “job talk” presentation, and participate in certain interviews. Accordingly, the judge asks if it is ethically permissible to:
1. Submit a “research agenda which consists of a written summary of legal topics” the judge might want to focus on as a law professor, complete with “citations to legal resources.”
2. Give “an in-person presentation to the faculty and administration which is recorded for those who cannot attend in person.” During the presentation, the judge “would be speaking on issues of law that may or may not be included in [the judge’s proposed] research agenda” and “would be asked questions by the faculty concerning the topic of the presentation.”
3. Interview with different segments of the law school community, such as faculty, administration and students.
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), 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]). In extra-judicial pursuits, a judge must seek to minimize conflict risks with judicial duties (see 22 NYCRR 100.4). For example, a judge must not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]) and may not engage in extra-judicial activities that cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the judicial office’s dignity, interfere with the proper performance of judicial duties, or are otherwise incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge also must not make any public comment on a matter that is “pending or impending” in any court in the United States or its territories (22 NYCRR 100.3[B][8]), including “one that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).
As we advised in Opinion 20-176 (citations omitted):
The Rules Governing Judicial Conduct do not preclude a full-time judge from seeking post-judicial employment with “law firms, governmental agencies or educational institutions,” or from applying for post-judicial employment “as a School Superintendent or School District Administrator, or as a private arbitrator,” subject to all ordinarily applicable limitations on extra-judicial activity throughout the application process.
Likewise, we see no impropriety in this judge’s applying to be a professor at a private law school and participating in the above-referenced application process, subject to generally applicable limitations on judicial speech and conduct. In our view, the public comment rule applies, but we write here to provide more specific guidance.
First, with respect to cases that are “pending or impending” within the meaning of the rules, we have said a judge may nonetheless provide “minimal and essentially factual commentary on changes in the law in the context of updating a legal treatise,” such as “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” (Opinion 13-06; accord e.g. Opinion 23-59). Such minimal commentary “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” (id.).
Second, we conclude that a judge may take into account the “academic exception” when applying for post-judicial academic employment. As explained in Opinion 23-02 (citations omitted):
In general, the public comment rule applies even “while lecturing on or participating in panel discussions about current trends in the law,” including during Continuing Legal Education programs. However, we have established a narrow “academic exception” to the public comment rule. Specifically, we have said that a judge who is a law school or college professor may comment, in the context of teaching a regular course of study, on cases pending in courts in other jurisdictions. However, even where the academic exception applies, the judge still may not comment on pending or impending cases within the judge’s own jurisdiction.
…
If students ask about a pending or reasonably foreseeable case arising within the jurisdiction of the judge’s court, the judge may respond by guiding a discussion that seeks to examine all sides of any issue without offering the judge’s personal opinion or predicting how the matter should or will be decided. In other words, such local matters, if raised, should be handled in a non-biased fashion in which the teacher does not offer any opinion until and unless the case has been resolved, and all appeals or reasonably foreseeable collateral proceedings have been exhausted.
The same principles apply where, as here, the inquiring judge is applying for post-judicial employment as a law professor, which (if successful) would presumably entail teaching a regular course of study in a law school. Accordingly, in the judge’s research agenda, “job talk” presentation, and interviews, the judge may discuss pending or impending cases outside the judge’s jurisdiction pursuant to the “academic exception” (see Opinion 23-02).
With respect to pending or impending cases in the judge’s jurisdiction, the judge may, during the application process, (a) respond to questions by guiding a discussion that seeks to examine all sides of an issue without offering a personal opinion or predicting how the matter should or will be decided (see Opinion 23-02) and/or (b) provide minimal and essentially factual commentary on changes in the law by noting the nature and extent of changes, unresolved questions, regional differences, and procedural impacts that are clear on the face of the decision, provided the judge does not resolve ambiguities or otherwise interpret the opinions described and does not express subjective praise or criticism of them (see Opinions 23-59; 13-06).
For completeness, we note that the public comment rule does not apply to (a) cases in courts outside the United States and its territories or (b) a case that is no longer “pending or impending” because it has been finally resolved, the time for appeals has elapsed, and no related or collateral proceedings are reasonably foreseeable (see generally 22 NYCRR 100.3[B][8]; Opinion 20-31).