Opinion 20-90

June 18, 2020

Digest:         A judge may not oppose an elected federal official or candidate for non-judicial public office in an editorial opinion piece.

Rules:          22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); 100.5(A)(1)(e); 100.5(B); Opinions 17-54; 04-71.

Opinion:

         An elected full-time judge asks if he/she may submit a letter to be published in the opinion section of a newspaper and/or bar association newsletter. Although the judge characterizes the letter as addressing the “administration of justice,” it repeatedly names and criticizes an elected federal official who is currently running for re-election. For example, the letter blames recent civil unrest on that official’s policies and philosophies, criticizes the official’s approach in multiple policy areas, and accuses the official of undermining the rule of law.

         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]). A judge may generally speak, write, lecture, and teach (see 22 NYCRR 100.4[B]), but must ensure that his/her extra-judicial activities are not incompatible with judicial office and do not (1) cast reasonable doubt on his/her capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Moreover, a judge generally must not “directly or indirectly” engage in political activity except as expressly permitted (22 NYCRR 100.5[A][1]) and may not publicly endorse or oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]).

         While judges may generally write or speak on topics concerning the law, the legal system and the administration of justice, they must always act to promote public confidence in the judiciary’s integrity and impartiality (see Opinions 17-54; 04-71). Thus, they must not “personally criticize, attack or comment on any public official or his/her statements” (Opinion 17-54; 22 NYCRR 100.2[A]). A judge must exercise self-restraint to “maintain public confidence in the judge’s ability to ‘perform judicial functions in an appropriate manner consistent with [his/her] legal and ethical obligations,’ help minimize ‘the danger of a public perception of entanglement of the judiciary itself in the political process,’ and avoid any possible appearance that the judge is inserting him/herself unnecessarily into public controversy” (Opinion 17-54 [citations omitted]).

         We recognize that the inquiring judge is him/herself an elected official. This makes no difference, because the federal official is seeking elective non-judicial office and thus is not the judge’s election opponent (see 22 NYCRR 100.5[A][1][e]; cf. 22 NYCRR 100.5[B] [resign-to-run rule]).

         Accordingly, we conclude the proposed letter is impermissible.¹

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¹ We note the proposed letter also comments on a specific high-profile incident which is the subject of pending or reasonably foreseeable litigation in the United States or its territories (see 22 NYCRR 100.3[B][8]; 100.0[V]).