Exceptions to the Rule

Exceptions to the Rule

Rule 2.10(D) opens with the word “notwithstanding,” and that word tells you how to read the rest: despite the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity.¹ Each category lifts the prohibition for statements it would otherwise reach, so an exception matters only where paragraph (A) would forbid the statement. Rule 2.10(E) adds a fourth provision. It lets a judge respond, directly or through a third party, to allegations in the media or elsewhere about the judge’s conduct in a matter, but only “subject to the requirements of paragraph (A).”² The two provisions differ in structure: paragraph (D) overrides (A) for its three categories, while paragraph (E) leaves (A) in force over everything a judge says in reply.

Each carve-out reaches only as far as the kind of statement it names. The underlying concern is that a judge who discusses a pending case outside the courtroom can appear to be taking sides prematurely or to be overly invested in the proceeding, to the detriment of real and perceived impartiality.³ A remark that starts inside a carve-out and drifts into the merits of a live matter has left the carve-out and falls back under paragraph (A). The common exam error is to read an exception as a freestanding license to talk, when the real question is whether the particular statement fits the category.

Official Duties

The first carve-out protects what a judge produces by doing the job: a written opinion explaining a ruling, an order disposing of a motion, remarks from the bench at a hearing or trial. Rule 2.10(D) permits public statements “in the course of official duties,”⁴ and the commentary reads that phrase to confine the prohibited speech to statements judges make off the bench.⁵ The exception therefore turns on the setting and function of the statement, and the topic does not enter the analysis. An opinion necessarily discusses the case that is pending, and the exception covers it anyway.

The logic is straightforward. A judge cannot decide a pending case without saying something about it, so a ban that reached those statements would prohibit the work itself. Outside the courtroom the expectation runs the other way: judges do not duel with public officials over the correctness of their decisions, hold press conferences about cases, or host call-in shows to explain their rulings. They “rely on their decisions, whether written or oral, to speak for themselves.”⁶

Students go wrong on the topic. If a judge who wrote an opinion later talks about the same ruling, does the exception still apply? The answer depends on where and how the judge speaks.

The only fact that moved the answer between those two scenes is the channel the judge used. An exam stem that adds “the judge says the radio appearance was meant only to explain the ruling” has not changed the channel, so the remarks remain off the bench and remain subject to paragraph (A). A judge who wants to speak about a pending matter outside the courtroom needs a different basis than the official-duties carve-out, and the remaining exceptions in this unit supply the candidates.

Explaining Court Procedures

The second carve-out lets a judge “explain court procedures,”⁸ and the commentary adds that prohibited public statements do not include explanations of court procedure.⁹ The practical payoff is public understanding. Most people meet the court system only rarely, and a judge who can tell a community group how jurors are summoned and selected, how an appeal moves from one court to the next, or why a hearing was continued helps the public make sense of what it is looking at.

Explaining procedure is safe because of what a description of procedure does to the concern behind paragraph (A). The first prong asks whether a public statement might reasonably be expected to affect the outcome or impair the fairness of a pending matter.¹⁰ A neutral account of how jurors are selected or how an appeal runs applies equally to every litigant, so it tells no listener who ought to win any particular case.

The line runs through content. A judge may mention a pending matter by name when explaining where it stands in the process, because mentioning a case is not what paragraph (A) forbids; the rule reaches statements that threaten the outcome or fairness of the case. The exception protects a description of how the process works only until the description turns into commentary on the merits or on a party’s conduct.

The harder question arises when a judge attaches the procedure label to a remark that does more than describe. Does it matter that the subject is procedural? It does not, because the exception looks at what the statement says, and a procedural topic can carry a merits remark as easily as a neutral description. Judges have been disciplined for telling reporters what they thought of a party’s discovery request, and discovery is a procedural subject.¹¹

The same split can appear inside a single topic. A judge who says a hearing was continued because the courtroom was double-booked has described procedure, while a judge who says it was continued because one side’s lawyer had been stalling has commented on a party’s conduct. When a stem says the judge was explaining procedure, ask whether the audience would come away knowing how the process works or knowing what the judge thinks of a party, a lawyer, or the merits. Explaining procedure also differs from explaining or defending a ruling. The carve-out covers how the court’s process runs, and a judge’s off-the-bench defense of a pending ruling, like the radio appearance in the last section, remains under paragraph (A).

Personal Litigation

The third carve-out permits a judge to comment on any proceeding in which the judge is a litigant in a personal capacity, notwithstanding the restrictions in paragraph (A).¹³ The phrase “personal capacity” is the pivot of the whole exception. A judge who sues or is sued as a private individual, over a home, a contract, or a family matter, stands before the court like any other party, and the carve-out lets that judge talk about the case. Without it, a judge sued over a property line would have to sit silent while the neighbor told the story to the local paper.

The limiting words cut the other way. A judge named in a suit because of the office held, such as an official-capacity defendant in a challenge to a court’s policy, is not a litigant in a personal capacity. The suit concerns how the court operates, and anything the judge says about it speaks for the institution, which returns the case to paragraph (A). The instinct that costs points on an exam is to treat every lawsuit that names a judge as one the judge is in personally, when the question is the capacity in which the judge is sued.

The first prong of paragraph (A) governs the official-capacity remarks in the first scene, since a public argument on the merits of a pending suit can reasonably be expected to affect its outcome or impair its fairness.¹⁴ The fact that separates the two scenes is the capacity in which the judge is a party, and tone and subject play no part. The text also sets a second limit. The exception covers comment on a proceeding in which the judge is the litigant, so a judge in a personal dispute gains no license to comment on some other pending case. When a stem describes a judge as a party, ask first whether the judge is in the case as a private individual or as a judge.

Responding to Criticism

Rule 2.10(E) addresses the moment when a judge feels the strongest pull to talk about a pending case: after the media or someone else has made allegations about how the judge handled it. The provision says a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter, and it opens with the qualifier “Subject to the requirements of paragraph (A).”¹⁶ Read quickly, the sentence looks like a license to answer critics. The opening words change that reading. The carve-outs in paragraph (D) operate despite paragraph (A), while paragraph (E) keeps (A) in force, so every response to a critic must clear the effect standards for public and nonpublic statements set out earlier in this chapter.

Follow a response down each of its two possible paths. If the response satisfies paragraph (A), meaning it cannot reasonably be expected to affect the outcome or impair the fairness of the matter, the judge may make it without help from paragraph (E). If the response fails paragraph (A), the judge is forbidden to make it, and paragraph (E) offers no rescue because its own text yields to (A). The commentary draws the conclusion that the qualifier effectively renders paragraph (E) a nullity.¹⁷ Paragraph (A) fixes the outcome before (E) comes into view, so (E) works best as a reminder that a judge may correct the record only within (A)’s limits. The words “directly or through a third party” leave this untouched, since the choice of messenger changes nothing about the test and a response is judged by what it says.

The provision takes this form because the harm paragraph (A) guards against does not depend on what provoked the remark. A judge who defends a pending ruling in public can appear to be taking sides prematurely or to be overly invested in the proceeding, whether the judge spoke unprompted or in reply to a headline.¹⁸ If a critic’s attack unlocked a free-standing right of reply, anyone who could get a critical story into print could draw out the very commentary paragraph (A) forbids. Courts have occasionally declined to sanction judges who answered critics in pending cases, but those decisions remain exceptional, so an answer should not rest on them.¹⁹

An exam stem that reports a judge was attacked in the press invites the answer that paragraph (E) permits the reply. That answer fails whenever the reply itself would violate paragraph (A), and the two scenes below show how the content of the reply decides the result.

The first judge’s motive, a wish to answer an accusation of favoritism, is the kind of intent the first prong never measures, and the segment that prompted the appearance does not change what a listener hears.²⁰ A listener hears a judge arguing the merits of a live case and disparaging a lawyer, which is the premature taking of sides the rule exists to prevent. The second judge’s correction passes for the opposite reason, because a neutral statement of where a case stands tells no one who ought to win. The content of the response moved the answer between the two scenes. The speaker and the messenger played no part, since a spokesperson’s statement that argued the merits would fail and a judge’s own neutral correction would pass. When a stem says a judge was responding to critics, set that label aside and ask what the response says about a matter that is pending or impending.