Opinion 25-14

 

February 6, 2025

 

Digest:   On these facts, a trial-level judge may jointly administer an independent non-commercial informational website about cases in the Court of Appeals together with a practicing attorney. 

 

Rules:    22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 24-173; 23-59; 20-58; 18-126; 16-05; 13-06; 10-172; 10-153; 10-138; 06-105; 04-13; 03-65; 97-01.

 

Opinion:

 

          A new full-time trial-level judge asks if he/she may continue to maintain a non-commercial website that collects and summarizes information about civil cases in the Court of Appeals as a public service, to educate the public about the state judiciary’s highest court.  The judge and a former public-sector colleague, who now works at a private law firm, are unpaid volunteers in co-administering the website.[1]  As described by the judge, the site principally provides a case-page for each civil case that will be argued before the Court of Appeals and collects the briefs, lower court decisions, and other such documents.  Consistent with its stated aim “to inform, not to persuade,” the site does not provide editorial commentary about the decisions, but instead offers brief headnote-style summaries of them.  The site also compiles and publishes annual statistics and educational materials to help the public understand the court and its functions.  There is no fee to access the website, which expressly disclaims any “agenda” other than “to foster a better understanding of the Court and a more general appreciation of its important work.”

 

          A judge must 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 engage in extra-judicial activities that are not incompatible with judicial office and that do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  A judge also must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]) nor lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). 

 

1.  Website Administration

 

          The judge asks if, after assuming judicial office, he/she may continue to participate in administering the website with a former colleague who is presently employed in a private law firm. 

 

          A judge may write and publish books, articles, manuals, columns and commentaries about the law, subject to generally applicable limitations on judicial speech and conduct (see 22 NYCRR 100.4[B]; Opinion 23-59).  However, a judge should avoid the perception that he/she is providing advice on litigation strategies or tactics and may not comment on matters of substantial public controversy when writing for a legal publication (see Opinions 23-59; 10-153).

 

          As we have advised relative to internet-based social media networks and internet blogs, “the question is not whether a judge may use” such technologies, “but how he/she does so” (Opinion 16-05, quoting Opinion 10-138). 

 

          We note initially that this website, as described, appears unlikely to create an impression that it speaks for or is affiliated with either of the co-administrators’ employers, including the attorney’s current law firm (cf. Opinion 18-126 [full-time judge may not consent to an interview that will be posted exclusively on a private law firm’s website]).  Nor does it implicate the concerns outlined in Opinion 20-58, where we advised that a part-time lawyer judge must not publish his/her own judicial decisions on his/her personal social media website, where doing so “may appear to (1) invite discussion, comment, or other input from members of the public or (2) indirectly promote his/her law practice.”  Indeed, the site described here, unlike a “personal social media” website, is not “likely to be seen as inviting or encouraging interaction with the judge” (id.). 

 

          Nothing in the inquiry suggests that the website could reasonably be seen as providing a direct, pecuniary advantage or even indirectly promoting the attorney’s law practice (cf. Opinion 24-173).  Even if the website may potentially benefit the attorney’s status in the legal community, any such intangible benefit to the attorney’s “reputation and status does not rise to the level of a ‘clear and overt nexus’” between the website and the attorney’s private interests to create an appearance of impropriety (id., quoting Opinion 97-01).  Likewise, the website clearly positions itself as an independent, informational site; in our view, it is not likely to “mislead members of the public” into thinking it has “the imprimatur of the Unified Court System” (Opinion 10-172).

 

          Accordingly, we find no ethical impediment to the judge’s co-administering the website with a practicing attorney.

 

2.  Brief Summaries of Court Cases

 

          The judge asks if he/she may write and post on the website “brief summaries of the Court’s cases and its decisions without editorial comment.”

 

          We have advised that a judge may provide a summary review of Court of Appeals decisions at a continuing legal education program that is open to judges, prosecutors, and defense attorneys, where the judge would avoid offering “a personal opinion about the result” and “neither express approval or disapproval” (Opinion 04-13; 22 NYCRR 100.3[B][8]).  Similarly, we said a judge may discuss the direction of case law and unresolved issues in the law generally, but should avoid commenting publicly on matters which remain pending or impending (Opinion 23-59).  As we explained (id., quoting Opinion 13-06): 

 

[M]inimal and essentially factual commentary on changes in the law in the context of updating a legal treatise – 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 – 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.

 

          Applying these principles, we reach the same conclusion.  Thus, the inquiring judge may author and post brief summaries of the court’s cases and its decisions without editorial comment.

 

3.  Website Expansion

 

          The website currently covers only civil cases, but the judge would like to expand the website to include coverage of “criminal or criminal-adjacent cases (habeas cases, SORA cases, MHL article 10 cases, etc.)” at the Court of Appeals.  As the judge will be presiding in a criminal part, the judge asks if he/she may (1) continue to co-administer the site once coverage has been expanded, and (2) personally contribute to the website’s coverage of criminal cases at the Court of Appeals.

 

          In our view, the judge may continue to co-administer the site when it expands to cover criminal or criminal-adjacent cases and may personally contribute to such coverage, subject again to the public comment rule (see e.g. Opinion 03-65 [judge in matrimonial part “may contribute to a monthly update service that reports recent Appellate Division decisions in the area of matrimonial law”]).  To that end, the judge should adopt the same posture of providing information without editorial comment (see Opinions 23-59; 13-06; 22 NYCRR 100.3[B][8]). 

 

4.  Monthly Newsletter

 

          The judge asks if he/she may (1) continue to co-administer the site once a monthly newsletter feature has been added to the website; and (2) personally participate in preparing the newsletter. The newsletter would contain strictly factual (non-editorial) summaries of the court’s recent decisions and cases that have been recently added to its docket.  It might also “highlight (and explain) jurisdictional filings that illustrate a particular feature of Court of Appeals jurisdiction (again, in the non-editorial format described above).”  

 

          We have advised that a trial-level judge may contribute to a monthly update service that reports recent Appellate Division decisions without providing any commentary on them (see Opinion 03-65).  Here we perceive no difference in this judge contributing to a monthly newsletter that likewise provides factual summaries of Court of Appeals cases, without editorial commentary (see id.; see also Opinions 23-59; 13-06; 22 NYCRR 100.3[B][8]). 

 

          Accordingly, the inquiring judge may continue to co-administer the website after a monthly newsletter has been added and may personally participate in preparing the newsletter.

 

          For completeness, we also note that the judge need not conceal his/her judicial identity in the autobiographical section of the website (see Opinions 16-05; 06-105).

 

[1] We assume the website’s operating costs, if any, are entirely self-funded by the co-administrators, as it does not charge for access, disclaims any connection with their employers, does not identify any sponsors or underwriters, does not display advertisements, and does not solicit funds.