By Jeremy R. Feinberg [Originally published in NYPRR January 2010]
Although 2009 was undoubtedly a busy and memorable year in the world of New York lawyer ethics — with developments ranging from the adoption of the New York rules of Professional Conduct to the litigation with the Federal Trade Commission over the application of its “Red Flags” rule to lawyers — it was also an eventful year in judicial ethics. The New York State Advisory Committee on Judicial ethics (Committee) received well over 200 formal inquiries from judges around the state, to say nothing of the hundreds of other informal requests for advice that came over the court system’s judicial ethics helpline. In this article, I will lay out some of the more interesting developments in judicial ethics from formal opinions the Committee issued during 2009. All of the Committee opinions discussed below (cited in the form ACJE Opinion ____) can be found in their entirety, free, on the New York State Unified Court System’s website, http://www.nycourts. gov/ip/ACJE/index.shtml (last visited Dec. 4, 2009). [Editors Note: Although many of the opinions described below have a citation reflecting a 2008 date, they were all issued in calendar year 2009].
Whether a judge is ethically permitted to hear a case, or instead must be disqualified from participation, is an issue that interests lawyers for many reasons. This year’s United States Supreme Court decision in Caperton v. A.T. Massey Coal Co., __ US __, 129, SCt 2252 (2009) has served as a lightning rod for many court watchers and would-be reformers. Although the Committee has not been presented with facts similar to those in Caperton, the Committee nonetheless issued several opinions giving judges guidance on whether or not to preside over a case.
In Opinion 08-212, the Committee addressed whether a judge whose first cousin was the Corporation Counsel for a local municipality must disqualify whenever any assistant corporation counsel from that office appeared in the judge’s court. The Committee noted that the rules governing Judicial Conduct bar a judge from “allow[ing] family, social, political or other relationships to influence the judge’s judicial conduct or judgment” and require a judge to disqualify when “the judge knows that a person related to the judge within the fourth degree of relationship is acting as a lawyer in the proceeding.” [ACJE Opinion 08-212, citing 22 NYCRR 100.2(B) and 100.3(e)(1)(e).]
The Committee cited a past opinion in which it had concluded that a judge must disqualify when assistant district attorneys from the office in which the judge’s sibling is the District Attorney appear before the judge. [ACJE Opinion 07-216.] The Committee also cited a precedent which decided that the judge must disqualify where an assistant corporation counsel from an office in which the judge’s spouse is a deputy chief corporation counsel appears in the judge’s court. [ACJE Opinion 98-29.] Relying on these prior opinions, the Committee advised that it could “discern no basis to differentiate between a spouse, a sibling, or a first cousin — all of whom are within the fourth degree of relationship. … Accordingly, the judge is disqualified, subject to remittal where that is possible. … If either an assistant Corporation Counsel in his/her cousin’s office or the municipality that office serves appears before the judge.” [ACJE Opinion 08-212.]
In another opinion, the Committee addressed a related issue — when and under what circumstances a judge must disqualify where an attorney appearing before the judge has filed a disciplinary complaint against the judge. In Opinion 08-36, the Committee reiterated its long-standing rule that when a lawyer files a complaint with the Commission on Judicial Conduct (CJC) against a judge, the judge need not disqualify solely for that reason. (But, if the judge believes it impossible to remain impartial in this circumstance, disqualification is still required). If, however, the CJC issues formal charges against the judge based on the lawyer’s complaint, the judge must disqualify when the lawyer appears in the judge’s court. Although unlikely given the circumstances, disqualification for this reason would be subject to remittal — a procedure that permits a judge to continue to preside despite disqualification after full disclosure of all relevant facts and the parties’ and their lawyers’ consent. [ACJE Opinion 08-36.] There are sound reasons for this rule: if a judge must disqualify solely because a lawyer files a complaint with the CJC, lawyers could “judge shop” whenever they or their clients are dissatisfied with a judge’s ruling.
In Joint Opinion 08-183, 08-202 and 09-112, the Committee examined the converse issue: what happens when a judge files a complaint against a lawyer with the applicable lawyer disciplinary authorities. [Editor’s Note: The full text of this joint opinion appears in NYPRR, August 2009.] The Committee, in an extensive opinion, made clear that it does not matter whether the judge merely reports the lawyer informally, or files a formal complaint: the judge must disqualify from presiding over any of the lawyer’s cases while the complaint is pending. In either instance, the Committee noted, the judge is apparently motivated by the belief that there is a substantial likelihood that the lawyer has committed a substantial violation of the ethics rules. By making the complaint or referral, the judge has objectively manifested an expectation that the disciplinary authorities will investigate and (to the extent necessary) prosecute. [ACJE Joint Opinion 08-183, 08-202 and 09-112.]
Similarly, the Committee concluded that there is no meaningful difference in the judge’s disqualification obligation if the judge filed the complaint before assuming the bench (i.e., as a lawyer) or after becoming a judge. In each case, the Committee concluded, there is a similar standard for the underlying obligation to report lawyers’ misconduct and a significant likelihood that the judge’s impartiality could reasonably be questioned. [Id., citing 22 NYCRR 100.3(e).]
The Committee overruled and modified several prior opinions to reflect that remittal is not available in most cases where a judge has filed a disciplinary complaint against a lawyer. The Committee explained that the lawyer’s right to confidentiality of a disciplinary proceeding is paramount, and therefore disclosure to obtain both sides’ remittal cannot be permitted. [ACJE Joint Opinion 08-183, 08-202 and 09-112.] Thus, while a complaint is pending, the judge must disqualify and may not share the reason for that disqualification in light of the lawyer’s right to confidentiality. even if the lawyer obtains a favorable result before the disciplinary body (such as dismissal or private admonishment), the judge still must disqualify from matters in which the lawyer appears for two years after the disciplinary matter has concluded and for the same reason may not seek remittal of disqualification because the disclosure needed for remittal would trammel confidentiality of the disciplinary proceeding. According to the Committee, only when the complaint is resolved publicly, such as a published appeal to the Appellate Division, or the lawyer accepts public discipline, may the judge explain the reasons for the disqualification and permit the parties to consider remittal. [Id.]
Reporting Misconduct By Lawyers and Judges
The Committee also issued two important opinions on judicial reporting obligations. in Opinion 08-08, the Committee responded to two related questions. First, it addressed whether a judge has discretion to report a lawyer who (the judge believes) has committed a non-substantial violation of the applicable lawyer ethics rules. Second, if so, what other options may the judge select in lieu of reporting the lawyer to disciplinary authorities? in the particular inquiry involved, a lawyer in a custody proceeding had, according to the judge, revealed a confidential report to a witness, thereby violating certain statutory law. The general test for judges observing lawyer misconduct is contained in rule 100.3(D)(2), which states that a judge “who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional responsibility shall take appropriate action.” [22 NYCRR 100.3(D)(2).]
The Committee concluded that a judge faced with a nonsubstantial violation could, consistent with rule 100.3(D) of the rules governing Judicial Conduct, choose other responsive measures. The Committee explained that although largely dependent on the nature of the proceeding involved, a number of factors are relevant to determine whether a lawyer’s transgression is a substantial violation. One of the significant factors, according to the Committee, includes “the extent to which the conduct involves the lawyer’s honesty and fitness to practice law.” [Opinion 08-08.]
The Committee then turned to the second question: what else can a judge who does not report a lawyer to a disciplinary body do if the judge believes a non-substantial violation has occurred. The Committee concluded that the judge’s options include reprimanding or admonishing the lawyer, imposing sanctions where available, or counseling the lawyer on an interim or final basis. [Id.]
In a second opinion on reporting obligations, the Committee examined whether a judge who commits an ethical violation is obligated to self-report to the CJC. In Opinion 08-209, a part-time judge had inadvertently violated a local Third Department rule regarding limitations on the practice of law. The question was whether the judge, upon learning of the violation, must take “appropriate action” by filing a report with the CJC, or some lesser step? The Committee concluded that a judge’s reporting obligation applies only to the conduct of other judges (and lawyers) and not to a judge’s own conduct. Therefore, the inquirer need not take any further action. [ACJE Opinion 08-209.] The Committee went on to note that in its view, the inadvertent violation described did not rise to the level of a substantial violation of the rules governing Judicial Conduct.
Ex Parte Communications
The Committee answered one question on ex parte communications that involved an unusual set of facts. Opinion 08-54 involved a contentious lawsuit in which plaintiff was seeking a default judgment against the defendant but had not been able to serve the judgment because the defendant’s address was unknown. Defendant sent a letter to the court in an envelope bearing a return address. Without opening the envelope to review the communication, the inquiring judge was certain that the letter was (under the circumstances) an ex parte communication. Therefore, the judge asked whether the court was required to follow its usual practice of sharing all ex parte communications with all parties, or, could adopt some other practice in this instance?
The Committee began by noting that it is generally advisable for judges to reveal the contents of ex parte communications to all sides as a matter of fairness, but concluded that this is not an absolute rule. Instead, the Committee recognized that the court “may exercise its discretion in not disclosing an ex parte communication only after considering the ‘content, context and [surrounding] circumstances’ of the particular communication.” ACJE Opinion 08-54 (quoting ACJE Opinion 98-144). In these particular circumstances, the judge had not even reviewed the contents of the communication, and therefore, the Committee concluded that there was no obligation to disclose the correspondence or even the fact that it had been received. The Committee also opined that if the court did not have an ordinary practice of notifying the parties when an attempted ex parte communication had been returned, it should not do so here. Doing so might create an appearance of partiality in favor of the plaintiff (who would benefit from that knowledge).
Among many opinions addressing various types of extrajudicial activities, the Committee issued one that broke new ground in the area of online social networks. In Opinion 08-176, the Committee addressed whether or not it was appropriate for a judge to join an online social network, and if appropriate, whether there were any limits on how the judge could use that internet-based resource. [Editor’s Note: The full text of Opinion 08-176 appears in NYPRR, June 2009.]
The Committee started by recognizing that there might be several reasons why a judge would want to use a social network site: “reconnecting with law school, college, or even high school classmates; increased interaction with distant family members; staying in touch with former colleagues; or even monitoring the usage of that same social network by minor children in the judge’s immediate family.” [ACJE Opinion 08-176.] With this backdrop, the Committee then offered the general premise that there is nothing per se unethical about using a social network site — “the question is not whether a judge can use a social network but rather, how he/she does so.” [Id.]
The Committee then listed some examples of how using a social network could cause ethical problems for judges. First, the Committee reminded readers about the public nature of online social network postings, and that judges should not post anything on their personal pages that the ethics rules would not otherwise permit them to share publicly. Second, the Committee pointed out that “friending” or “linking” with a lawyer on a social network could be a factor in determining whether a judge has a sufficiently close social relationship with an attorney to require the judge to disqualify, or at least disclose the relationship when the attorney appears in the judge’s court. Third, the Committee reminded judges of the general prohibition against providing any kind of legal advice (applicable to all full-time judges), and reiterated that they should not do so through their social network pages.
Acknowledging that this was only a partial list of pitfalls, however, the Committee provided two important broad caveats. First, Opinion 08-176 calls upon judges to “as a baseline, employ an appropriate level of prudence, discretion and decorum in how they make use of this technology, above and beyond” the specific guidance already described. The Committee also warned that “the functions and resources available on, and technology behind, social networks rapidly change. Neither this opinion, nor any future opinion the Committee could offer, can accurately predict how these technologies will change, and, accordingly, affect judges’ responsibilities under the Rules.” [ACJE Opinion 08-176.] As such, the Committee advised that any judge who becomes aware of new features or facets of the social network the judge is otherwise using should feel free to write to the Committee for further guidance.
New York is not alone in considering the propriety of judicial use of online social networks. Around the same time that the Committee issued Opinion 08-176, a judge in North Carolina was publicly reprimanded for, among other things, misuse of the social network Facebook in a proceeding that received national attention. In Matter of Terry [(N.C. Judicial Standards Commission 08-234, April 1, 2009) (available at http://www.aoc. state.nc.us/www/public/coa/jsc/publicreprimands/jsc08-234.pdf, last visited Dec. 9, 2009)], the judge was presiding over a custody proceeding and during a conference mentioned Facebook to the two lawyers on the matter. One of the lawyers, but not the other, subsequently “friended” the judge, and the two began discussing, on their Facebook pages, various facets of the ongoing case. Although the judge disclosed some of these communications to the other lawyer, and cooperated fully with the disciplinary authorities’ investigation, he was ultimately found to have violated a number of applicable rules, including casting doubt on the impartiality and integrity of his office, and engaging in inappropriate ex parte contact with a lawyer. [Id.] The Terry decision demonstrates that the issues raised in Opinion 08-176 are very real.
More recently, the Florida Judicial ethics Advisory Committee (FJEAC) issued its own opinion on social network use — concluding that it would be per se improper to establish Facebook friendships with lawyers who “may appear” before the judge. To a majority of that advisory body, such a connection would create the appearance that the lawyer was in a special position to influence the judge. (The opinion notes that a minority of the FJEAC would have answered the question the opposite way and allowed judges to establish Facebook friendships with such lawyers). [The full text of the Florida opinion 2009-20 is available at: http://www.jud6.org/LegalCommunity/LegalPractice/ opinions/jeacopinions/2009/2009-20.html (last visited Dec. 10, 2009).]
Judicial Screening Panels
In Opinion 08-160, the Committee addressed whether the appearance of impropriety should prevent a judge from contributing personal views about the qualifications of a judicial candidate. Here, the inquiring judge was one of many recipients of a widely broadcast e-mail sent by a bar association’s screening committee, to the membership at large, soliciting views of all recipients as to one particular candidate’s qualifications. The inquiring judge asked whether it was appropriate to share positive or negative information based on the judge’s experience with the candidate who appeared as a lawyer in the judge’s court.
Although flagging the need for all judges to avoid even the appearance of impropriety in all of their activities, the Committee concluded that a judge sharing information on the candidate in these circumstances is not problematic. The Committee cited an earlier opinion in which it had permitted a judge to respond to a request made directly from a judicial screening panel, and stated “[t]he fact that a judicial screening panel sends a request for information about a potential candidate for judicial office using a ‘mass e-mail’ does not warrant a different result.” [ACJE Opinion 08-160.] The Committee closed by advising the judge that as with any letter of reference, the judge should (i) limit commentary to that based on personal knowledge and experience; (ii) neither urge approval nor disapproval of a candidate; and (iii) if using personal letterhead, indicate that the communication is “personal and unofficial.” [Id.] Of course, this result does not permit a judge to publicly endorse or oppose a candidate for elective judicial office. [22 NYCRR 100.5(A)(1)(e).]
Upcoming Changes to Judicial Ethics Rules?
The New York State Bar Association (NYSBA) has been considering adopting some or all of the proposed changes to the model Code of Judicial Conduct as implemented by the ABA. After an extended period of evaluation of its 1990 model Code of Judicial Conduct, the American Bar Association adopted a revised Model Code of Judicial Conduct in 2007 (the revised Model Code). In New York, a Special Committee of the NYSBA undertook to review the revised Model Code and recommend changes to the state’s judicial ethics rules. Judge Joseph P. Sullivan (ret.), a former Presiding Justice of the Appellate Division, First Judicial Department, presided over monthly meetings of the Special Committee from September 2008 through August 2009.
Under Judge Sullivan’s leadership, the Special Committee divided the revised model Code into groups of related rules and appointed subcommittees to review and report back on all portions of the revised Model Code. The Special Committee reviewed each subcommittee report, debated the proposals and voted on the proposed rules. The reporter regularly circulated drafts of the proposed rules, along with proposed comments and reporter’s notes, for additional review, debate, and revision. In November 2009, the NYBSA House of Delegates voted to put the Special Committee’s report and recommendations on the agenda for its April 9, 2010 meeting.
The next step, if the NYSBA approves some or all of the proposed rules, comments and reporter’s notes, would be formal submission to the New York State Unified Court System for consideration. Stay tuned.
Jeremy R. Feinberg is the Statewide Special Counsel for Ethics for the New York Unified Court System. He would like to thank his colleagues Laura Smith and Erin Devaney for their insight and suggestions that immeasurably improved this article. The views expressed in this article are those of the author only and are not those of the Office of Court Administration or Unified Court System.
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