September 9, 2021
Digest: A judicial association may publicly condemn the deliberate and unauthorized disclosure of a judge’s residential address, as such disclosures may compromise the personal safety and security of judges and/or court personnel and thus affect the administration of justice.
Rules: 22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(8); Opinions 19-120; 16-12; 14-58; 13-32; 12-01; 11-10; 1999 Ann Rep of NY Commn on Jud Conduct at 79.
Several judicial associations are considering whether to issue a joint public statement concerning a recent “doxxing” incident where an individual deliberately released a sitting judge’s residential address without authorization and encouraged others to make use of the address. While the incident received extensive media coverage and also resulted in suspension of the individual from their employment, the inquiring judge is unaware of any threatened or likely proceeding in any court. The question before us is whether the judicial associations may, at this time, release a statement “condemn[ing]” the recent doxxing incident and “discourag[ing]” others from engaging in similar behavior.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 not 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]).
In general, both judicial associations and their members may comment publicly on matters involving the law, the legal system, or the administration of justice (see Opinion 19-120). As we stated in Opinion 19-120 (citations omitted and formatting simplified):
Of course, even when seeking to improve the law, the legal system or the administration of justice, a judge must abide by generally applicable limitations on judicial speech and conduct. For example, a judge still may not publicly comment on pending or impending cases in the United States or its territories and must ensure that the judge’s comments do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or otherwise interfere with the proper performance of judicial duties.
Clearly, deliberately disclosing the residential addresses of judges or court personnel without authorization, and inviting others to make use of those addresses, may compromise the personal safety and security of those judges and court personnel. Indeed, where the doxxing is done in response to their performance of official duties, it could be seen as threatening or undermining our legal system and the administration of justice. We therefore believe judges and judicial associations should generally be able to publicly condemn the practice, urge the public not to engage in it, and seek legislative action in this area as it directly affects the administration of justice.
On the facts presented, and bearing in mind the strong importance of the topic to the entire judiciary, we believe the public comment rule does not bar the judicial associations from releasing a statement of the type described. First, this doxxing incident involved release of a judge’s personal residential information as a direct result of the judge’s performance of their official duties. Indeed, the release might potentially be seen as retaliation for actions undertaken in the judge’s official capacity. This is significant, because our prior opinions recognize that judges should have additional leeway when they are subject to threats or complaints against them in their judicial capacity (see e.g. Opinions 14-58 [when a criminal defendant files a multi-million dollar lien against a judge’s property and the sole basis for the lien filing is the judge’s performance of official judicial duties: the judge may take all lawful steps necessary to clear their title and may pursue all lawful avenues to put an end to the vexatious lien filing; it is not unethical for the judge to use the court’s clerical and other resources to assist in preparing a pro se expungement proceeding; and the judge may continue to preside in the criminal case, provided the judge determines they can be fair and impartial, a matter confined solely to the conscience of the particular judge]; 12-01 [a judge need not disclose that they consulted with court security personnel about possible security threats arising from a document admitted into evidence in a pending matter; and the judge may continue to preside over the matter as long as the judge believes they can be fair and impartial]; 11-10 [a judge who is the victim of a crime in their judicial capacity may respond to inquiries from the media about how the crime has affected the judge, both personally and officially, while the individual who committed that crime is awaiting sentencing in federal court]).
Second, while a disciplinary proceeding for the individual who released the judge’s residential address is reasonably foreseeable and thus “impending,” such disciplinary proceeding will not take place in “any court” (22 NYCRR 100.3[B]). While it is possible that a lawsuit may eventually ensue, we note that its nature (if any) would almost certainly turn on the results of the disciplinary proceeding and/or other developments not yet foreseeable. We need not now address whether a judicial association may comment if a court proceeding becomes reasonably foreseeable; at this time, it is not (cf. Opinion 13-32 [a judge may obtain the advice of a disinterested expert on the law with respect to a legal issue that is not currently before the judge but which the judge anticipates may come before him/her in the future]).
Third, we note the judicial associations propose to make a somewhat “generic” statement condemning the incident, rather than providing names or specific factual detail. While that would not be sufficient, standing alone, to allow a judge or judicial association to make an otherwise impermissible comment on a pending or impending proceeding (see 1999 Ann Rep of NY Commn on Jud Conduct at 79), here this factor works together with the rest to underscore the permissibility of the proposed conduct. However, we otherwise decline to comment on the proposed wording, as we are “not in a position to review, edit or otherwise approve/disapprove” statements proffered by judges, judicial associations, or quasi-judicial officials (Opinion 16-12).
1 The proposed statement provides little identifying information; for example, it does not mention the names of the individuals involved or extensive factual detail about the incident. Nonetheless, we believe the matter referred to is readily identifiable.