November 15, 2021
This responds to your inquiry (21-133) stating that you are a part-time lawyer judge who is representing a client on a litigated matter. You have explained that the client reached out to the media about the case and suggested they contact you “for information and comment.” You now ask whether it is ethically permissible for you to provide a substantive response to the media.
The Rules Governing Judicial Conduct provide that a judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories but may explain the procedures of the court (see 22 NYCRR 100.3[B]). However, this rule does not completely bar a part-time lawyer judge from providing such responses. Indeed, we have previously noted that, “to absolutely bar such responses where the attorney is also a part-time judge may, in some circumstances, create an unwarranted and unnecessary barrier to an attorney’s obligation to provide effective assistance of counsel” (Opinion 07-47).
Accordingly, if you find that you have an obligation to respond to the media arising out of your legal representation of your client, you may respond substantively to media inquiries concerning your client’s cases in your capacity as a lawyer, provided you make no reference to your status as a judge (see Opinions 19-133; 13-09/13-52; 07-47). Any invocation of the fact that you also serve as a judge “could readily be perceived as lending the prestige of judicial office to advance the interests of the client and of [yourself] as a lawyer, and is therefore prohibited” (Opinion 07-47; 22 NYCRR 100.2[C]).
Enclosed for your convenience are Opinions 19-133; 13-09/-13-52 and 07-47 which address this issue.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Acting Supreme Court Justice