Opinion 93-06

January 28, 1993

Digest:         A judge may publicly discuss a complaint lodged against him or her with the Commission on Judicial Conduct since the judge can waive the confidentiality of such proceedings. However, the judge must limit himself or herself to facts of record in discussing the underlying case, and should refrain from making controversial comments.

Rules:          Judiciary Law §45; 22 NYCRR 100.3(a)(6), 100.2(a).

Opinion:

         An attorney appearing before a judge has lodged a Complaint against the judge with the Commission on Judicial Conduct, alleging that the judge has failed to comply with certain provisions of the Criminal Procedure Law. The attorney made the complaint public by referring to it in motion papers filed with the clerk of the court, and by mentioning such complaint in open court. The Commission currently is investigating the attorney's complaint. The judge inquires of this Committee whether or not it would be ethically permissible to contact various legislators of the State of New York and inform them of the proceedings against the judge, in an effort to seek a change in the current law regarding the authority or procedures of the New York State Commission on Judicial Conduct. The judge also inquires whether or not it would be ethically permissible to contact the media.

         Although proceedings before the Commission are confidential, Judiciary Law §45 allows a judge to waive the confidentiality of all records of the Commission relating to a complaint against him or her, and to designate that such records be made available for inspection and copying to the public or to any designated person, agency or body. See also Opinion 89-79, Vol. IV. Accordingly, a judge who is the subject of a pending complaint before the Commission may contact various New York State legislators regarding that complaint. A judge may also do so while the underlying court case is pending, provided that the judge limits any references to that case to matters of record, consistent with §100.3(a)(6) of the Rules of the Chief Administrator.

         A judge also may inform the media about the pending complaint, but should abstain from controversial comments and, so far as possible, should limit himself or herself to the facts of record.

         When discussing a complaint filed against the judge with the Commission, a judge must be mindful of section 100.2(a) of the Rules of the Chief Administrator, which states: "A judge shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary." Therefore, any discussions of the complaint, whether with legislators or the media, should be conducted in a dignified and professional manner.