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Key Facts
- Federal level: The Code of Conduct for United States Judges restricts a judge from making public comment on the merits of a matter pending or impending in any court, with stated exceptions.
- National overview: ABA Model Code Rule 2.10 provides model guidance that generally limits public statements likely to affect outcomes or impair fairness in pending or impending matters, while allowing certain official-duty and procedure-education type statements.
- State level: New York’s Part 100, Rule 100.3(B)(8) restricts a judge from making public comment about a pending or impending proceeding in any court within the United States or its territories, subject to exceptions.
- Federal level: Federal ethics guidance addressing social media identifies avoiding comments on pending matters as an ethical consideration.
- National overview: Advisory Opinion No. 112 describes an appearance-of-impropriety concern tied to frequent social-media messages between a judge (or judicial employee) and a lawyer who appears in a pending case.
- Federal level: Under 28 U.S.C. § 351, any person may file a written judicial-conduct complaint alleging prejudicial conduct or inability to discharge duties due to mental or physical disability.
- Federal level: Under 28 U.S.C. § 352, the chief judge must expeditiously review a complaint and may conduct a limited inquiry without making findings of fact about matters reasonably in dispute.
- Federal level: Under 28 U.S.C. § 353 and § 354, a special committee investigates in certain situations and the judicial council may dismiss or take actions to assure effective administration, but it may not order removal of an Article III judge.
- Federal level: Under 28 U.S.C. § 355, the Judicial Conference may certify impeachment consideration may be warranted and transmit the determination and record to the House of Representatives.
Social media collapses the distance between public speech and court activity, which can create judicial-ethics concerns when a judge’s online communications overlap with matters that are pending or likely to come before the court.
- Why social media creates judicial ethics questions
- Federal rules for U.S. judges on public comments about pending or impending matters
- State rule example New York’s Part 100
- How social media connects to the pending comments concept
- Beyond public comments ex parte communications and fairness
- The federal judicial conduct complaint framework under 28 U.S.C. §§ 351 355
- Common confusion model guidance versus controlling state or federal rules
- Related legal information
- Sources
Why social media creates judicial ethics questions
Judicial ethics rules aim to protect fair decision-making and public confidence in impartiality. Restrictions on “pending or impending” matters treat public statements as a special risk because audiences may interpret a judge’s words as signaling how the court will decide.
Federal rules for U.S. judges on public comments about pending or impending matters
The Code of Conduct for United States Judges includes a rule limiting public comment on the merits of pending or impending matters. In Canon 3(A)(6), the Code states that a judge should not make public comment on the merits of a matter pending or impending in any court, while also listing exceptions that include statements made in the course of the judge’s official duties, explanations of court procedures, and scholarly presentations for purposes of legal education.
A compact comparison of the “pending or impending” public comment concept
| Authority | What it targets | Core idea in the text |
|---|---|---|
| Canon 3(A)(6) of the Code of Conduct for United States Judges | Public comment on the merits | A judge should not make public comment on the merits of a matter pending or impending in any court, with stated exceptions. |
| ABA Model Code, Rule 2.10 (model guidance) | Public statements expected to affect fairness | A judge should not make public statements that might reasonably be expected to affect the outcome or impair fairness in pending or impending matters, subject to exceptions. |
| New York Part 100, Rule 100.3(B)(8) | Public comment about proceedings | A judge shall not make public comment about a pending or impending proceeding in any court within the United States or its territories, subject to exceptions. |
State rule example New York’s Part 100
State judicial conduct rules control state judges, so federal ethics language cannot serve as a universal baseline for every courtroom. New York’s Part 100, Rule 100.3(B)(8) restricts public comment about a pending or impending proceeding in any U.S. court or territory, with stated exceptions. For that reason, the ABA Model Code is often treated as guidance rather than as automatically controlling law in every state.
How social media connects to the pending comments concept
Ethics guidance addressing online communications links social media to the pending-matters restriction. Advisory Opinion No. 112 explains that the use of social media by judges and judicial employees raises several ethical considerations, including “not commenting on pending matters.”
Appearance of impropriety risks can arise from online relationship signals
Advisory Opinion No. 112 also highlights an appearance-of-impropriety concern that can arise from frequent messages on social media between a judge (or judicial employee) and a “friend” who is also counsel in a case pending before the court. The concern does not depend only on explicit outcome predictions; it also reflects how ongoing digital contact can undermine public confidence in impartiality.
Beyond public comments ex parte communications and fairness
In addition to restrictions on public comment, the Code of Conduct for United States Judges also addresses fairness-related communications. The Code restricts ex parte communications “concerning a pending or impending matter” made outside the presence of parties and their lawyers, and it directs a judge who receives an unauthorized ex parte communication to promptly notify the parties and allow them an opportunity to respond.
The federal judicial conduct complaint framework under 28 U.S.C. §§ 351 355
When ethics issues arise for federal judges, federal law sets out a judicial-conduct complaint process. Under 28 U.S.C. § 351, any person may file a written judicial-conduct complaint alleging prejudicial conduct affecting the effective and expeditious administration of the courts or alleging that the judge is unable to discharge duties due to mental or physical disability.
Under 28 U.S.C. § 352, the chief judge must expeditiously review the complaint and may conduct a limited inquiry, and the statute directs the chief judge not to make findings of fact about any matter that is reasonably in dispute. If the chief judge does not proceed under the review provisions, 28 U.S.C. § 353 requires the appointment of equal numbers of circuit and district judges to a special committee, which investigates and files a comprehensive written report with findings and recommendations to the judicial council.
After that, 28 U.S.C. § 354 authorizes the judicial council to dismiss the complaint or take actions to assure effective and expeditious administration, including temporary reassignment and private or public censure or reprimand. The same provision prohibits the judicial council from ordering removal from office of an Article III judge appointed during good behavior. If the matter proceeds far enough for escalation, 28 U.S.C. § 355 allows the Judicial Conference, if impeachment consideration may be warranted, to certify and transmit the determination and the record of proceedings to the House of Representatives for further action.
Common confusion model guidance versus controlling state or federal rules
A frequent source of confusion is treating the same “pending matter” language as if it automatically applies across every jurisdiction. Federal judges follow the Code of Conduct for United States Judges, while state judges follow state rules like New York’s Part 100. The ABA Model Code can help explain a common structure, but it remains model guidance unless a specific state has adopted language that matches the relevant rule.
