Opinion 96-142

December 12, 1996

Digest:         A judge may not send a letter to the editor of a newspaper responding to published articles criticizing the judge for choosing not to disqualify himself/herself in a pending criminal proceeding.

Rules:          22 NYCRR 100.3(B)(8)

Opinion:

         A judge was criticized in newspaper articles for choosing not to disqualify himself/herself in a criminal proceeding. The articles allege that the judge had previously had an intimate relationship with a member or members of the defendant’s family and that such a relationship required the judge’s disqualification. The judge inquires whether it is ethically permissible to respond to these allegations in the form of a letter to the editor. The letter would point out inaccuracies and misstatements in the articles, distinguish this case from other cases involving the defendant’s family in which the judge exercised recusal and defend the judge’s decision not to do so in this instance.

         The Rules Governing Judicial Conduct prohibit a judge from making any public comment about a pending or impending matter in any court with the United States or its territories. 22 NYCRR 100.3(B)(8).

         It appears from the newspaper article and the judge’s inquiry that the criminal matter is still pending, i.e., sentence remain to be imposed. This fact is dispositive. Accordingly, the judge may not publicly comment on the case and therefore may not send the proposed letter to the newspaper.