Opinion No. 209 (1997)

QUESTION: May a senior judge who presided in a massive tort litigation action respond publicly, while the case is still pending, to unfair criticism of his actions in the case, including allegations of bias because of personal ties to the attorney for the plaintiffs and suggestions that the judge's political interests favor plaintiffs who mostly reside in the judge's county? This judge feels the need to defend his reputation now against these false accusations even though the matter is still pending because of fears the litigation may not be concluded during his lifetime

ANSWER: No. A senior judge who has consented to accept judicial assignment is required to comply with the Code of Judicial Conduct. See Canon 6F(l) (with exceptions not relevant to this inquiry.) Canon 3B(10) requires a judge to refrain from public comment about a pending or impending proceeding which may come before the judge. This canon bars public commentary by the judge except for judicial statements explaining the procedures of the court, It is the Committees's opinion that the senior judge's wish to respond publicly to unfair criticism of his actions in a pending matter goes beyond explaining to the public the court's procedures, and this violates Canon 3B(l 0). To engage in an editorial debate with his critics about the merits or motivations of his decision not to recuse himself or his ability to be impartial would place the judge in the position of taking sides outside the courtroom for or against parties urging certain positions inside the courtroom. That is to say that the judge's editorial efforts to defend his impartiality could unwittingly cast further doubt on his impartiality. Canon 4A(l) requires that the judge's extra-judicial activities riot cast reasonable doubt on the judge's capacity to act impartially as a judge.

In Opinion No. 95 (1987) the Committee stated that it would be unethical for a judge to discuss the facts "or other aspects of the case" with the news media while a matter is pending in that judge's court or any other court. In Opinion No. 191 (1996) the Committee determined that Canon 3(B) prohibits an appellate judge from discussing in a newspaper article or editorial that judge's stated position on matters already decided by the court because they may come up again. A judge's editorial comment on pending matters, even in defense of his reputation, is likewise prohibited. We are sympathetic with the judge's desire to refute unfair or false criticism of his actions, but any response to critics of the judge's actions or motives places that judge in a potentially adversarial position that may cast doubt on his impartiality in the matter. When the judge no longer consents to accept judicial assignment and is no longer governed by the Code, he. may respond publicly to his critics.