Opinion 96-145

December 12,1996

Digest:         A judge should not send a letter to a newspaper responding to an editorial critical of actions of the judge (and other governmental officials) when serving as a county legislator, especially if the subject involves a pending or impending case.

Rules:          22 NYCRR 100.3(B)(8); 100.4(A)(2); Opinion 92-13.

Opinion:

         A judge was mentioned by name, along with others, in a newspaper editorial criticizing the actions of current and former government officials. The editorial blames the public officials from one political party in general and the judge in his/her former capacity as a legislator, for allegedly allowing the overassessment of a large facility in the area. Substantial damages must now be paid by the local municipality, the school district(s) and the county. The judge inquires whether it is ethically permissible to respond to these allegations in the form of a letter to the editor. The judge’s letter would criticize the editorial, and re-direct blame on the newspaper, the county government, the county legislature, the attorneys representing the town, and others, including a former Governor, while defending his/her role as a county legislator.

         The inquiry refers to a State Supreme Court decision cited in the editorial and which presumably motivated it. Although not stated by the judge, it appears that such a decision may be subject to appeal or further judicial action. Such a circumstance would be decisive. For the Rules Governing Judicial Conduct prohibit a judge from making any public comment about a pending or impending matter in any court within the United States or its territories. 22 NYCRR 100.3(B)(8). This prohibition extends to cases subject to or pending on appeal. Since it is not clear that there has been judicial finality it would therefore be inappropriate for the judge to comment on the matters raised in the editorial.

         Moreover, even if the case in question were no longer pending, a judge must scrupulously avoid personalizing comments, refrain from invective, and be objective and dispassionate so as not to detract in any way from the dignity of judicial office (22 NYCRR 100.4(A)(2); Opinion 92-13). A letter which personally and intensely criticizes numerous current public officials and other people by name or title questions the competence and skill of attorneys, attacks the motivations of the media and appears to be political and partisan is impermissible.