Opinion 95-48

April 27, 1995

Digest:        A judge may respond to inquiries concerning cases which he or she prosecuted as district attorney, provided none of the cases are pending in any court, and comments are limited to facts of record and would not cast doubt on the judge's impartiality in similar, though unrelated, matters.

Rule:            22 NYCRR 100.2(a); 100.3(a)(6)

Opinion:

         A county judge who formerly was district attorney, inquires as to whether it would be proper to respond to requests for comments upon cases investigated and prosecuted by the judge prior to being elected to judicial office. The judge states that all such cases are closed except one, in which an appeal is pending.

         Rule 100.3(a)(6) of the Rules of the Chief Administrator provides that:

A judge shall abstain from public comment about a pending or impending matter in any court . . .This subdivision does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

         Under this rule, the judge must refrain from making any public comment upon a case in which an appeal is pending. As to cases in which the judicial process is complete the judge may comment. Any comment must be discreet, considering Rule 100.2(a), which states that judges "shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary". If comment is made, it should be limited to facts of record and, as we instructed in Opinion 88-106, Vol. 11, "the judge must be careful not to express opinions . . . that would indicate that the judge has a predisposition with respect to particular cases, which could cast doubt on the judge's impartiality".