October 29, 2020
Digest: A judge may not send a letter describing the court’s issuance of a bench warrant, where defense counsel has suggested the warrant was improper and could result in civil liability.
Rules: 22 NYCRR 100.0(V); 100.2; 100.2(A); 100.2(C); 100.3(B)(8); Opinions 17-61; 15-165; 15-100.
A judge asks if it is permissible to send a letter, copied to all counsel, advising a defendant of the “true facts” underlying the judge’s issuance of a bench warrant shortly after the defendant had paid, or attempted to pay, outstanding fines and surcharges. The proposed letter would address an email in which defense counsel “insinuates that [the] court somehow erred in issuing a warrant for [the defendant], and that there may be some civil liability as a result.” Although the case “is not pending in [the judge’s] court any longer,” the judge wishes to send the letter because defense counsel “seemed reluctant to advise” the defendant of the “true facts” as detailed by the court on the record after viewing defense counsel’s email.1
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a judge must neither lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]) nor make any public comment on a matter that is “pending or impending” in any court in the United States or its territories (22 NYCRR 100.3[B]), including “one that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).2
As noted in Opinion 15-100 (citations and most internal quotation marks omitted):
The ban on public comment on pending or impending proceedings is very broad because a matter remains “pending or impending” at least until the time for appeals has expired and often longer, that is, as long as any appeal or collateral proceeding in the case is pending or likely. Indeed, the Committee has advised that a judge may not comment even on previously decided aspects of a matter that have been rendered moot, because the case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment.
While a case remains pending or impending, a judge must not seek to explain or justify his/her decision, as this would constitute impermissible public comment on a pending or impending matter. Thus, the Committee has counseled against any public statements by the judge about his or her criteria or actions in a particular instance. Although the public comment rule allows a judge to answer strictly factual questions about a specific case’s status, … a judge must be careful not to report on or summarize a court proceeding, comment on the merits of the case or preview how the judge might rule.
We have also reiterated the Commission’s warning “that a judge should not ‘attempt to repeat or to summarize out of court what was said in the courtroom’” with respect to a pending case (Opinion 15-165 [citation omitted]). Even once the case is no longer “pending or impending” - i.e. after “the time for appeals has been exhausted and no further or collateral proceedings are reasonably foreseeable” - a judge must “proceed with extreme caution” when discussing their own prior cases and “should not go beyond the published decision” (Opinion 15-100 [citation omitted]).
In Opinion 17-61, we said a judge may not advise the parties to an appeal of the judge’s belief that the trial transcript was “erroneous” in that it misstated the court’s instructions to jurors, when the judge’s alleged misstatement was a basis for the appeal. We observed that the judge’s proposed conduct “could be seen as tantamount to outlining appellate arguments for the prosecutor” which “is clearly the role of an advocate and therefore impermissible” (id.).
Here, too, we believe the judge’s proposed letter runs afoul of the public comment rule and would create an appearance of impropriety. The letter is attempting to address or refute defense counsel’s suggestion that the court “erred” in issuing a warrant and that “there may be some civil liability” as a result. That is, defense counsel’s email can be seen as raising questions about the propriety of the warrant’s issuance and/or the resulting seizure of defendant’s property. As these matters have not been judicially resolved, it is reasonably foreseeable that the defendant might wish to raise these in a future proceeding. We note the judge’s characterization of the facts could potentially be subject to dispute, and the letter’s conclusion openly speculates about possible alternative outcomes had events occurred differently. In addition, the proposed letter may appear to interfere with the attorney/client relationship by suggesting that defense counsel failed to properly advise their client. The letter comments on the “merits” of the processing of the bench warrant and speculates on how a future judge might rule in a future civil action. A broad reading of the public comment rule, as we have previously required, does not permit a judge to comment on such matters. Accordingly, the letter is impermissible.
1 The defendant was not present for that court appearance, which took place approximately two weeks before the judge’s inquiry to us.
2 We note the exception permitting judges to “mak[e] public statements in the course of their official duties” (22 NYCRR 100.3[B]) is inapplicable, as the matter is no longer pending before the judge and we see no reason why the judge’s official duties would require sending the participants in a now-concluded criminal proceeding a letter setting forth the judge’s view of the facts.