Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 99-7

May a judge appear on a regular basis on a radio or television interview program or talk show concerning legal issues unrelated to the merits of a pending case or investigation and be identified as a judge?

Answer: No.

A national television network has approached a judge about appearing on a talk show. He would not conduct interviews nor would he be compensated for his services.

While the network would like to identify him as a judge, it is not essential to do. He could be identified as an attorney who had formerly held governmental positions. There would be no comments on the merits of pending cases, pending investigations or political issues. The judge's comments would focus on issues dealing with practice and procedure.

It is difficult to imagine an interview with a judge on a radio or television that would not lead to discussion of legal issues either pending or impending. No matter how conscientious the judge may be, the danger of commenting on such issues is unavoidable.

Consideration of these issues requires reference to several provisions of the Canons of Judicial Conduct. These canons govern a judges activities and preserve the integrity of the judiciary:

The ultimate and permeating objective of the canons ... is to maintain the integrity of the judiciary and public confidence in that integrity. Accordingly, the canons evidence concern not only for the reality of judicial integrity, but for the appearance of that reality. Matter of Seaman, 672 A.2d 106, 121 (N.J., 1993).
The canons recognize that the integrity and independence of the judiciary require judges to be scrupulous in focusing their activities in a manner which avoids any action which could reasonably lessen the public's confidence in the judicial system. Thus, Canon 2 instructs:

A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.
The commentary to Canon 2 offers additional guidance:

A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
Issues which merit public discussion on national television and radio often involve cases pending in a court or which may become the subject of a judicial proceeding. It matters not whether the issue is pending before the judge whose commentary is sought. The proscription of a judge's commenting on a pending or impending proceeding applies even if the proceeding is not within the Commonwealth. In Re Inquiry of Broadbelt, 683 A.2d 543, 546 (N.J., 1996); In Re Hey, 425 S.E. 2d 221, 222-224 (W. Va., 1992). In today's electronic media a judge's commenting about a case pending in another jurisdiction could influence prospective jurors and witnesses. These commentaries could very easily lessen the public's confidence in the judiciary, especially if the court hearing the case ruled on matters contrary to the opinions expressed by the commenting judge.

It is axiomatic that Virginia judges do not render advisory opinions. The tradition that judges do not express opinions on legal issues not properly presented in a case or controversy is based in sound reason. Until evidence is presented, argument heard, and, when necessary, research completed, a judge simply cannot weigh impartially the competing evidence and argument. Commenting on such issues before a national audience could easily lead one to conclude that the judge had reached a judicial opinion on an issue before the matter had arisen in an appropriate forum.

A more direct concern is whether a judge's appearing on a commercial radio or television network would advance the financial interests of that organization. Canon 2B reads in pertinent part:

A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.
The fact that a network desires the appearance of a judge to comment on legal matters indicates that the network sees some advantage to his appearance. The well-known competition among news organizations leads to the inescapable conclusion that a network would conclude that the more authoritative the speaker, the more the program would appeal to the audience. The committee is of the opinion that appearing on such programs on a regular basis could create the appearance that the judge is advancing the private interests of others. Broadbelt at 550; Opinion 96-25, Florida Committee on Standards of Conduct Governing Judges. It is of no significance that the judge would not be identified as a judge. A judge is a public official, and it would strain credulity to conclude that the audience, or a part of the audience, would not be aware of his position.

A judge is not necessarily prohibited from all appearances on a commercial radio or television program. Several factors must be considered in determining whether a judge should participate in such programs : The frequency of his appearance, the audience, the subject matter, and whether the program is commercial or non-commercial. Broadbelt at 550. For example, an appearance by a judge to discuss the role of the judiciary in government or the court's relationship with community educational and treatment facilities could be appropriate.

The committee is of the opinion that the appearances contemplated by this request would be improper.

Canons of Judicial Conduct, Canons 2, 2 (B).

In Re Inquiry of Broadbelt, 683 A.2d 543 (N.J., 1996)

In Re Hey, 425 S.E.2d 221 (W.Va., 1992).

Matter of Seaman, 672 A.2d 106 (N.J., 1993).

Opinion 96-25, Florida Committee on Standards of Conduct Governing Judges.