Joint Opinion 98-126 and 98-129

October 22, 1998

Digest:         A judge who is presiding over a criminal proceeding that was originally a capital punishment case may speak at a law school alumni gathering on capital punishment issues generally, including potential amendment of statutes governing fees for capital case defense counsel, but may not comment specifically on the case pending before the judge.

Rule:            22 NYCRR 100.3(B)(8); 100.4(B); Opinions 88-106 (Vol. II); 90-181 (Vol. VI); 91-148 (Vol. VIII); 92-50 (Vol. IX); 92-67(Vol. IX); 95-105 (Vol. XIII).

Opinion:

         A judge who is presiding over a criminal action which was commenced as a capital murder case but which has recently been decapitalized, has been asked to speak at a law school alumni association meeting. The proposed topics of the presentation include certain death penalty related decisions made by the judge while the case was proceeding as a capital case and whether the statutory rates paid to capital defense lawyers should be reduced. The case will probably still be pending at the time of the presentation.

         The Rules Governing Judicial Conduct prohibit a judge from making any public comment on any pending or impending proceeding in any court in the United States or its territories. 22 NYCRR 100.3(B)(8). The Rules, however, do allow a judge to make public statements explaining the procedures of the court. 22 NYCRR 100.3(B)(8). The Rules also allow a judge to speak, write, lecture, teach and participate in extra-judicial activities that are not otherwise prohibited. 22 NYCRR 100.4(B).

         Thus, the judge may appear and comment on the procedures of the court, on the topic of capital punishment proceedings and capital punishment issues generally, and on the law, the legal system and administration of justice, provided such appearance does not interfere with the judge's judicial duties and the judge does not make statements that would cast doubt on the judge's impartiality. Opinions 88-106 (Vol. II); 90-181 (Vol. VI); 91-148 (Vol. VIII); 92-50 (Vol. IX); 92-67(Vol. IX). Permissible statements include commenting on whether a statute governing the fees paid to capital defense lawyers should be amended.

         The judge, however, may not comment specifically on the pending matter, beyond explaining the procedures of the court, even though the decisions involving capital punishment have been mooted by the decapitalization of the case. Opinion 95-105 (Vol. XIII). The case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment.