Opinion 23-205
February 1, 2024
Digest: A judge may not participate as a panelist in a bar association’s Continuing Legal Education program about a recently settled civil action in which the judge presided, together with attorneys who appeared in the case, unless: (1) the time for appeals has expired; (2) no collateral proceedings are reasonably foreseeable; and (3) the panel includes attorneys from both the plaintiff’s side and the defense side.
Rules: 22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 15-61.
Opinion:
A full-time judge asks if they may participate as a panelist in a bar association’s Continuing Legal Education (CLE) program about a civil proceeding in which the judge recently presided. Though the matter ultimately settled, it involved a trial, during which the judge made evidentiary rulings from the bench without issuing written opinions. The proposed CLE panel would include several, but not all, of the participating attorneys.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities such as teaching, provided that such activities are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially; (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]; 100.4[B]). A judge may not, however, 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][8]). An “impending” proceeding is “one that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).
We have previously considered a judge’s invitation to participate as a panelist about a case that was recently before the judge. In that instance, the judge had made a “recent ruling from the bench on the admissibility of DNA evidence” (Opinion 15-61). The judge proposed to explain “why I ruled as I did” and provide a preview of the judge’s forthcoming written decision (id.). One of the judge’s proposed fellow panelists was an attorney who argued the case before the judge. We started with an overview of the public comment rule, explaining (id. [citations and footnote omitted]):
Judges must abstain from commenting on prior decisions where the commentary concerns a case that may still be pending or impending. The bar against public comment extends “at least until the time for appeals has expired and often longer,” such as when “a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding” is reasonably foreseeable. Thus, even where a defendant’s appellate remedies have been exhausted, if post-trial motions have been or will be made, a judge should avoid public discussion of that case.
Here, the inquiring judge wishes to participate in a panel discussion of a decision so recent that it has not yet been reduced to writing. Where, as here, the time for appeals is not exhausted, the case remains “pending or impending” within the meaning of the Rules Governing Judicial Conduct.
We then reviewed the “minimal and essentially factual commentary” that a judge may be able to offer on a pending or impending case, provided the judge “does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them” (id. [citations omitted]). Finally, we noted we have “also cautioned judges against going beyond their published decisions” (id. [citations omitted]).
After reviewing those principles, we concluded that the judge in Opinion 15-61 may not participate on the panel “if the time to appeal has not expired” (id.). We said “the occasion would call for impermissible public comment,” as “the judge’s proposed comments would clearly go beyond the recent oral decision and elaborate on his/her reasoning” (id.). In essence, “it would be difficult, if not impossible, for the judge to comply with the public comment rule in a panel discussion of his/her recently issued decision with one of the attorneys who personally argued the case” (id.). We also noted a greater appearance of impropriety on the facts presented in Opinion 15-61, because the judge “would be on the panel with an attorney for only one side of the case” (id.).
In our view, similar considerations apply here. Since the judge’s evidentiary decisions from the bench will not be memorialized in a separate written decision, they may be treated as the equivalent of a published decision. We conclude the inquiring judge may not participate in the proposed CLE program unless: (1) the time for appeals has expired; (2) no collateral proceedings are reasonably foreseeable; and (3) the panel includes attorneys from both the plaintiff’s side and the defense side.