Pilot Project: Subject Matter Index

On this page, we have formed a rough subject matter index by categorizing our more recent opinions by subject matter, starting with Opinion 15-01. We hope this will help make the Committee's recently broadcast opinions more accessible.

  1. Use the general topic index above to access a topic that may be of interest; as you will see, some topics also have indexes of subtopics for a narrower focus.
  2. Or search for words on this page using your web browser's search function (e.g., Ctrl+F).
  3. Do you find this page helpful? Let us know your thoughts.

 

Disciplinary Obligations; Reporting Illegal or Unethical Conduct

(See generally 22 NYCRR 100.3[D].)

Sub-Topics: Conduct by Attorneys or Law Firms | by Other Judges | by Court Personnel | by Litigants, Witnesses, and Others | Unauthorized Practice of Law | General Principles - Timing of Making Report; Effect of Prior Reports; No Duty to Investigate; No Duty to Self-Report

... by Attorneys or Law Firms

Opinion 22-64 A judge who has no personal knowledge that attorney-defendants impermissibly contacted represented plaintiffs in a matter pending before the judge is not required to report the attorneys to the grievance committee.

Opinion 22-49 After a judge admonished an attorney on the record for an inappropriate attempt at humor referencing the client's ethnicity or national origin, the judge has discretion to take further action, but is not required to do so.

Opinion 22-43 Must a judge who has become aware of online complaints about off-duty misconduct concerning another judge's principal law clerk report that clerk to the attorney grievance committee?

Opinion 22-32 Where the inquiring judge is not certain that the alleged conduct of an attorney violates the Rules of Professional Conduct or concludes that the alleged misconduct is not substantial, the judge need not take further action, although the judge may do so, in the judge’s sole discretion.

Opinion 22-21 Whether a judge must or may conduct an inquiry into a potential conflict of interest arising from the pending prosecution of a criminal defense attorney presents a legal question beyond the jurisdiction of this Committee.

Opinion 21-171 (2) On the facts presented, it is within the inquiring judge’s sole discretion to determine if there is a substantial likelihood that a law firm’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, what action is appropriate.

Opinion 21-86 (3) If the judge believes [an] attorney's appearance on a case that had previously been handled by another colleague in the same governmental law office constitutes impermissible judge-shopping, the judge may report this conduct to the grievance committee.

Opinion 21-78 (1) Where an attorney persists in sending emails to the court and opposing counsel concerning a case, despite a court order disqualifying the attorney from the representation due to an ethical conflict under the Rules of Professional Conduct, the judge must take appropriate action. (2)(a) If, on considering all relevant circumstances, the judge determines that the misconduct seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the appropriate action is to report the attorney to the disciplinary committee. (b) Conversely, if the judge determines the misconduct does not reach that level of egregiousness, the judge has discretion to take less severe appropriate measures which may include, but are not limited to, counseling or warning the lawyer, reporting the lawyer to their employer, or sanctioning the lawyer.

Opinion 20-213 A judge with personal knowledge that an attorney knowingly assisted a client in effectuating a transfer of disputed real estate under false pretenses must report the misconduct to the appropriate grievance committee. Reporting may await the conclusion of proceedings. After making the report, the judge is disqualified in all matters involving the attorney, both while the disciplinary matter is pending and for two years thereafter.

Opinion 20-201 Must a judge report information sent to them by a third party which alleges misconduct by local law enforcement agencies and the local district attorney’s office, where the judge has no first-hand knowledge of the alleged misconduct and is unable to ascertain whether any particular attorney has likely violated any ethical rules or rules of professional conduct?

Opinion 20-158 An appellate division justice who learns that a law firm’s website features screen shots and video of the court’s oral arguments, in which the court’s justices are visible and readily identifiable, must ask the law firm to remove them. The court may, in its discretion, post a notice on its own website advising that images and videos of the court’s justices shown on the court’s website or otherwise may not be used to advance private interests or in furtherance of any commercial purpose. The court and its justices need not monitor lawyer websites but upon learning of any such misuse in the future, a justice should object and request that the offending images be removed.

Opinion 19-107 (1) On these facts, where a judge, in the course of his/her judicial duties, becomes aware of a party’s apparent attempt to undermine the judge’s judicial decision by filing a declaratory judgment action in another court and seeking a default judgment without disclosing related actions, the judge may, but is not required to, inform the other judge of the relevant facts. If the judge chooses to contact the other judge, he/she must do so in writing and copy both sides. (2) Where the judge further concludes the attorney-defendant and his/her counsel both deliberately submitted materially false documents in an apparent attempt to hinder an unrepresented judgment creditor’s efforts to collect a lawful judgment through fraud or deception, the judge must report both attorneys to the grievance committee. (3) The judge may wait until the conclusion of the proceeding before reporting the attorneys.

Opinion 19-90 Where a law firm’s former paralegal apparently forged the judge’s signature on a divorce judgment and pretended it had been appropriately filed, and the judge has serious concerns about the firm’s supervision of and reliance on the paralegal, the judge: (1) must report the conduct to the grievance committee if the judge concludes (a) the law firm, through one or more of its employees, deliberately sought to deceive the court, opposing counsel, and the clerk’s office and/or (b) one or more responsible attorneys allowed this situation to occur through extreme carelessness in failing to supervise their subordinates...

Opinion 19-57 Under the circumstances presented, the inquiring judges must take action with respect to an attorney’s alleged misconduct, but what action is appropriate is left to their sole discretion.

Opinion 19-48 What are a judge’s obligations on receiving correspondence from opposing attorneys in a case expressing differing views on whether a suspended attorney was wrongly practicing law?

Opinion 19-44 What are a judge’s disciplinary obligations concerning an attorney who, acting pro se, makes material false claims about the judge both in affidavits submitted in the case before the judge and in various other unrelated proceedings against the judge? If the judge reports the attorney, may he/she continue to preside in the case where the attorney is appearing pro se?

Opinion 19-35 Where an attorney who practices in a specialized part manifests extremely rude, malicious, and belligerent behavior that, if true, appears to raise serious concerns about the attorney’s fitness to practice law: ... (4) each judge must consider whether his/her own personal knowledge of the attorney’s overall alleged misconduct and unfitness to practice law as described in the inquiry is sufficiently reliable to satisfy the ‘substantial likelihood’ prong and, if so, he/she must report the attorney; (5) a judge who concludes that he/she is not ethically required to report the attorney may nonetheless exercise his/her discretion to do so; and (6) a judge who decides to report the attorney is disqualified from the attorney’s cases both while the disciplinary matter is pending and for two years thereafter. During this period, remittal is not available unless the attorney waives confidentiality or the grievance committee issues a published opinion.

Opinion 18-176/18-176(A)/18-177 (1) A judge who suspects the district attorney of possible misconduct, but lacks reliable information evidencing a substantial likelihood of a substantial violation, is not ethically required to take any action concerning the possible misconduct. (2) If a judge decides to report the district attorney to the grievance committee, he/she must thereafter disqualify him/herself from cases in which the district attorney personally appears during the pendency of the disciplinary process and for two years after it ends. Remittal is not possible unless the grievance committee makes the misconduct a matter of public record or the district attorney waives confidentiality. The reporting judge may continue to preside in cases brought by assistant district attorneys, provided he/she can be fair and impartial. (3) If a judge concludes that it is mandatory to report an attorney’s possible misconduct under the circumstances known to him/her, but knows the alleged misconduct has already been reported to the appropriate disciplinary authority, he/she need not personally report that alleged misconduct. …

Opinion 18-170 A judge who has personal knowledge that a prosecutor has failed to make certain disclosures to the defense must determine, based on facts and circumstances known to the judge, whether there is a substantial likelihood the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. The judge may, in his/her discretion, wait until the proceeding ends to take any such action.

Opinion 18-140 What are a judge’s obligations on learning that a non-attorney may have drafted legal memoranda for an attorney?

Opinion 18-58 (1) A judge may continue to preside in a case after reporting one of the attorneys to a bar association’s lawyer assistance committee, provided the judge can be fair and impartial. (2) A judge who receives information indicating a substantial likelihood that an attorney has substantially violated the requirement of competence under the Rules of Professional Conduct must take appropriate action. What action is appropriate under the circumstances is ordinarily left to the judge’s discretion. However, if the judge determines the attorney’s condition is egregious and seriously calls into question the attorney’s fitness as a lawyer, the attorney’s condition must be reported to the grievance committee. (3) Even if the judge concludes that reporting to the attorney grievance committee is mandatory under the circumstances, the judge may wait until after the case is over before making the report in order to avoid the need for immediate disqualification in all matters involving the attorney.

Opinion 18-29 A judge with personal knowledge that an attorney has made perjurious statements in an affirmation must report the attorney to the appropriate attorney disciplinary committee.

Opinion 18-24 A judge need not take any action against an attorney who was the defendant in an uncontested action for annulment based on fraud, where the attorney’s admissions do not suggest the attorney engaged in illegal or unethical conduct.

Opinion 17-158 A judge who believes an attorney has revealed the name of the respondent judge in a disciplinary investigation (1) need not report the attorney to the Commission on Judicial Conduct; (2) has wide discretion to determine whether the information received reveals a substantial likelihood the lawyer committed a substantial violation of the Rules of Professional Conduct and, if so, what action is appropriate; and (3) may, in his/her sole discretion, direct the attorneys not to reveal the identity of the respondent judge and remind them of the Commission's confidentiality requirements.

Opinion 17-140 Where a prosecutor has provided certain Brady materials involving a particular police officer in one case, what should the judge do in a hypothetical future case involving the same police officer, if the prosecutor fails to make the same disclosure?

Opinion 17-116/17-132 A judge must determine whether he/she has information indicating a substantial likelihood that another judge or an attorney has committed a substantial violation of the applicable professional ethics rules and, if so, must take appropriate action.

Opinion 17-90 What are a judge's obligations on learning a law firm unilaterally altered an order of protection the judge issued against their client?

Opinion 17-07 Must a judge report an attorney he/she has never met, seen, or interacted with, based solely on information received from the judge’s relatives?

Opinion 17-06 Under the circumstances, is a judge required to take any additional steps in response to second-hand information about an attorney's alleged misconduct?

Opinion 16-159 (1) A judge who is dissatisfied with an attorney’s explanation of the propriety of his/her conduct in connection with a proposed default divorce decree must determine, based on the facts and circumstances known to the judge, whether there is a substantial likelihood that the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. (2) If the judge determines in good faith that he/she is legally permitted and/or legally required to sign the decrees, he/she may do so without violating the Rules Governing Judicial Conduct, assuming he/she can be fair and impartial and is not otherwise disqualified from presiding in matters involving the attorney. The Committee suggests the judge consult with an administrative judge for assistance in navigating any applicable legal or administrative issues.

Opinion 16-132 Must a judge report a litigant's former attorney for alleged, unspecified sexual misconduct briefly alluded to in open court and in the attorney's absence?

Opinion 16-110 What are a judge's obligations after hearing "confidentially" from another judge about possibly unethical and/or illegal conduct of a local prosecutor, where the inquiring judge has no personal knowledge of such conduct?

Opinion 16-48 Must a judge report an attorney if he/she believes the attorney is improperly attempting to include personal information about the judge's family in the record?

Opinion 16-39 What are a judge's obligations with respect to reporting attorneys for improper use of their firm's IOLA account?

Opinion 15-231 A judge who has personal knowledge that an estate’s former attorney has failed to turn over estate assets in response to a court order and missed several court appearances must determine, based on the facts and circumstances known to the judge, whether there is a substantial likelihood that the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. The judge may, in his/her discretion, wait until the proceeding ends to take any such action.

Opinion 15-183 What are a judge's disciplinary obligations after learning that a police report contains a defendant's unconfirmed, but also un-denied claim that an assistant public defender directed a racial/ethnic slur toward the defendant?

Opinion 15-180 Where a judge has received information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, and has further concluded that the apparent misconduct seriously calls into question the attorney's honesty, trustworthiness or fitness to practice law, may the judge nonetheless refrain from reporting the apparent misconduct to the grievance committee if (a) the misconduct was covered extensively in the media and (b) the judge believes the attorney's former employer may have reported the misconduct?

Opinion 15-157 Absent a court directive or ethics rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in the midst of a hearing, a court attorney referee need not take any action on learning that an attorney briefly spoke to the witness about subpoenaed materials during the recess.

Opinion 15-138/15-144/15-166 (1) Where a judge has no direct personal knowledge whatsoever about purported misconduct of another judge or attorney, he/she has particularly wide discretion to make a threshold decision, based on information the judge has already received, of whether there is a “substantial likelihood” of a substantial violation under all the circumstances currently known to him/her. (2) If a judge believes the information he/she has is mere rumor, gossip, or innuendo, or is otherwise not sufficiently reliable or credible to warrant further consideration, the “substantial likelihood” prong is not met, and the judge is not ethically required to take any action at all. (3) Conversely, if the judge concludes, in his/her sole discretion, that the “substantial likelihood” prong is met, he/she must then consider whether the “substantial violation” prong is met and, if so, must also determine what action is appropriate under the circumstances presented.

Opinion 15-135 What are the obligations of a judge who has received a secondhand report of a casually overheard and possibly privileged conversation between an attorney and his/her client, relating to a case before the judge?

Opinion 15-54 Is a judge obligated to report two prosecutors to an attorney grievance committee based on what the judge believes to be professional misconduct?

Opinion 15-22 What action, if any, is a judge required to take when the judge believes an attorney who is running for judicial office made an improper political contribution in violation of 22 NYCRR 100.5?

Opinion 14-131 (1) A judge who has received an unsolicited inquiry from a law firm’s recruitment director concerning post-judicial employment, but does not wish to explore the possibility of employment with the firm, may continue to preside over the firm’s cases and has no obligation to disclose the communication. (2) If the judge concludes that the law firm was not thereby attempting to unduly influence the judge’s judicial decisions and that the conduct does not otherwise seriously call into question an attorney’s honesty, fitness, or trustworthiness as a lawyer, the judge need not report the conduct to a disciplinary authority.

Opinion 14-103 (1) A judge is not ethically required to take any action in discharge of his/her disciplinary responsibilities, where the judge’s sole source of knowledge of wrongdoing on the part of an attorney is the fact that the attorney has agreed to an adjournment in contemplation of dismissal of certain charges against the attorney.

Opinion 14-88 A judge who learns an attorney appearing before him/her pro se has testified under oath that he/she used a fictitious bank account to shield his/her law firm income from court-ordered child support payments, must report the attorney to the attorney grievance committee. Thereafter, the judge must disqualify him/herself from any case in which the attorney appears during the pendency of the disciplinary proceeding and for two years thereafter. Remittal is unavailable unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision.

Opinion 14-50 A judge is not required to take any action in furtherance of his/her disciplinary responsibilities merely because a law enforcement officer has, in the course of testifying about possible criminal activity on the part of a criminal defendant, mentioned the names of one or more attorney(s) and judge(s).

Opinion 14-39 (1) A judge, having learned that an attorney on a case is under indictment, but having no personal knowledge of the underlying circumstances, is not required to report the attorney to the attorney disciplinary authority. (2) As the judge has concluded he/she can decide the case before him/her without reference to this information, the judge need not make any disclosure to other attorneys on the case.

Opinion 13-127 A court attorney referee who heard testimony in a matrimonial matter about an attorney’s personal use of client funds must determine whether he/she has substantial knowledge that the attorney committed a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action.

Opinion 13-118 Is a judge ethically obligated to further investigate allegations of impropriety by an attorney and report the alleged misconduct?

Opinion 13-77 An attorney has stated under oath that he/she falsely advised a client that the client's lawsuit was settled, and paid the client the purported settlement amount from the attorney's own personal funds; is reporting mandatory?

Opinion 13-69 When is a judge required to report another part-time lawyer/judge for engaging in misconduct?

Opinion 13-61 A judge who concludes that an attorney has threatened to file a complaint against the judge in an effort to unduly influence the judge’s judicial decision should report the attorney to the appropriate disciplinary committee.

Opinion 13-10 What are a judge's obligations concerning an attorney the judge believes has an alcohol abuse problem?

Opinion 12-180 Must a judge report a litigant and/or the litigant's attorney where the litigant asserted in an affidavit that he/she lied to the court and that his/her counsel advised him/her to do so, and in subsequent papers denied perjuring him/herself or intentionally lying to the court?

Opinion 12-131 Must a judge report an attorney to the Grievance Committee for submitting false affidavits of actual engagement?

Opinion 12-55 An attorney's refusal to make potentially incriminating statements, standing alone, does not rise to the level of a "substantial likelihood" that the attorney has committed professional misconduct.

Opinion 12-29 Must a judge report an attorney the judge previously sanctioned, who is now engaging in conduct the judge believes to be unethical?

Opinion 11-48 A support magistrate who receives information indicating a substantial likelihood that an attorney has failed to pay court-ordered child support must determine whether the attorney’s conduct, under the specific circumstances known to the support magistrate, constitutes a substantial violation of the Rules of Professional Conduct and, if so, must then take appropriate action.

Opinion 10-204 Must a judge report an attorney who admitted anonymously preparing papers on behalf of an unrepresented litigant (also known as "ghostwriting") in opposition to an application pending before the judge?

Opinion 10-142 (1) A judge is not required to investigate whether an attorney has engaged in misconduct. (2) The propriety of a prosecutor’s exercise of discretion in deciding whether and how to prosecute offenses raises legal issues beyond the Committee’s jurisdiction. (3) A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct shall take appropriate action.

Opinion 10-122 A judge must determine whether he/she has information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. Should the judge report the attorney, the judge is disqualified from presiding in matters in which the attorney appears during the pendency of the disciplinary proceeding and for two years after it finally concludes, and remittal is unavailable.

Opinion 10-106 (1) Where it appears that an attorney has failed to comply with the attorney registration requirements Judiciary Law §468-a requires, a judge should afford the attorney an opportunity to demonstrate that he/she filed the mandatory registration statement and/or paid the prescribed fee to avoid an unnecessary report to the disciplinary committee. If the attorney is not in compliance with Judiciary Law §468-a, the judge must report the attorney to the appropriate Appellate Division of the Supreme Court for disciplinary action. (2) Where it appears that a nonresident attorney does not maintain a physical law office or an actual mailing address in New York State as Judiciary Law §470 requires, a judge should afford the attorney an opportunity to demonstrate otherwise. If the attorney does not produce satisfactory evidence of compliance, and the judge concludes that the attorney has thereby committed a substantial violation of the Professional Conduct Rules, the judge should take appropriate action.

Opinion 10-86 A judge who believes that the charges in a criminal complaint against a lawyer would, if proved, constitute a substantial violation of the Rules of Professional Conduct is not required to take any action unless he/she concludes there is a substantial likelihood that the charges are true. If the judge does report the lawyer, the judge must disqualify him/herself, without the possibility of remittal, if the lawyer appears before the judge while the disciplinary complaint is pending.

Opinion 10-85 When a judge receives information indicating a substantial likelihood that a lawyer’s conduct constitutes a substantial violation of the Rules of Professional Conduct, but does not rise to a level that seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the judge has the discretion to take some appropriate action other than reporting the conduct to a disciplinary authority.

Opinion 10-64 A judge does not have information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct where an attorney publicly discloses that his/her client, who is charged with a crime, made false statements in an affidavit in support of a motion the client filed pro se and that the client is likely to do so again, as the judge does not know the substance of the alleged false statements or that the attorney’s allegation is true.

Opinion 10-36 A judge who has received information about possible criminal activities by an attorney whose identity is unknown to the judge has no obligation to determine the attorney’s identity for the purpose of reporting the attorney to the disciplinary committee.

Opinion 09-142 A judge who concludes that an attorney deliberately sought to deceive the court and acted extremely unprofessionally in defiance of court directives should report the attorney to the appropriate disciplinary committee.

Opinion 09-49 A judge who learns during a sealed grand jury proceeding that the attorney who was the subject of the proceeding intends to report his/her own misconduct to the appropriate lawyer disciplinary authority need not take any further action if he/she can verify that the attorney has done so. If the attorney does not report his/her own misconduct, the judge must determine whether he/she may legally disclose information he/she learned during the sealed grand jury proceedings. If not, then the judge has no further disciplinary responsibility under the Rules Governing Judicial Conduct. If the judge may legally disclose the information, he/she then must determine whether the conduct constitutes a substantial or nonsubstantial violation of the Rules of Professional Conduct and thereafter take appropriate action.

back to Discipline

... by Other Judges

Opinion 22-33 On these facts, a judge presiding in a criminal case need not investigate the timing of another judge's prior recusal in the matter nor take any further action.

Opinion 21-153 A judge who receives a message from another judge asking them to consider a fine for an acquaintance lower than the fine the prosecutor is recommending must report the other judge to the Commission on Judicial Conduct.

Opinion 21-138 Where a judge reported to court administrators that a part-time attorney judge inappropriately appeared as a prosecutor, and was advised that the District Administrative Judge has addressed the matter, the judge need not take any further action.

Opinion 21-19 A judge with knowledge that another judge with a public disciplinary history took steps to have an acquaintance’s matter reassigned to him/herself must report the other judge to the Commission on Judicial Conduct.

Opinion 20-207 Where a judge has already determined that it is necessary to report another judge for an apparent incident of “ticket-fixing,” the judge is not relieved of the duty to report merely because the other judge resigned from the bench in the interim.

Opinion 20-191/20-192 Where a judge hears conflicting reports about another judge's possible comments at a meeting, but has no personal knowledge of these comments and is unable to conclude there is a substantial likelihood that the other judge said anything improper, they have no obligation to take any action.

Opinion 20-181 Must a judge take any action with respect to the submissions of a town justice in support of a town court clerk’s pistol permit application?

Opinion 19-165 A judge who participated in an appeal must report to the Commission on Judicial Conduct a letter he/she received from the lower-court judge whose decision was overturned, because the letter appears to raise very serious questions about the writer’s impartiality, fairness, and understanding of a proper judicial role and suggests an attempt to improperly influence the subsequent disposition of the case before another judge.

Opinion 19-66 What are a judge’s disciplinary obligations, if any, on learning that a judicial colleague has made an apparent legal or procedural error?

Opinion 19-64 What are a judge’s disciplinary obligations, if any, on receiving a judicial colleague’s written communication concerning an ongoing proceeding the colleague has before the Commission?

Opinion 18-165 (1) A supervising judge who concludes that another judge pointed a licensed firearm at a defendant in the courtroom several years ago, in circumstances where he/she would not have been justified in using deadly physical force, must take appropriate action. (2) Where the supervising judge is satisfied that it was a one-time, isolated incident provoked by the other judge’s concerns about his/her personal safety, and the supervising judge has, in consultation with the district administrative judge, counseled the other judge orally and in writing to impress upon him/her that this conduct must never be repeated, the supervising judge need not take any further action. (3) Conversely, if the supervising judge concludes, in his/her sole discretion, that the measures he/she has already taken are inadequate and the incident still raises serious questions about the judge’s fitness to continue in office that must be investigated by the Commission on Judicial Conduct, the judge must report the conduct to the Commission.

Opinion 18-157 Where an appellate judge with administrative or supervisory responsibilities concludes that a lower-court judge improperly contacted the judges participating in an appeal in an attempt to influence the disposition of the case, he/she (1) must ensure the incident is reported to the Commission on Judicial Conduct; (2) must direct that the improper communication be disclosed to appellate counsel in the case; and (3) may permit the appellate judges who received the improper communication to continue to preside in the case if he/she is satisfied they (a) can be fair and impartial and (b) can decide the appeal without reference to the improper communication.

Opinion 18-112 Does a judge have any disciplinary obligations on learning that another judge presides in matters involving a lawyer with whom he/she is friendly and formerly shared office space?

Opinion 18-74 When an administrative judge learns that a full-time judge, in his/her capacity as a parent, has provided legal advice to other parents and impermissibly commented on pending litigation beyond the bounds of the judge’s own direct, personal interest in his/her minor child’s education, the administrative judge (1) must take appropriate action but (2) has full discretion to determine what action is appropriate under the circumstances.

Opinion 18-66 Under these circumstances, the inquiring judge has full discretion to take, or not take, any action in response to a co-judge’s conduct.

Opinion 18-10 A judge who has concerns a new judge may not fully understand his/her judicial duties, but lacks reliable information suggesting possible misconduct by the other judge, has full discretion to take, or not take, any action in response to such conduct.

Opinion 17-177 Where a judge has reliable, first-hand knowledge that another judge attempted to use his/her judicial status to influence the bail decision in a family member’s criminal case, but the other judge never revealed his/her name: (1) if the judge knows the other judge’s identity, he/she must report him/her to the Commission on Judicial Conduct; but (2) if the judge does not know the other judge’s identity, he/she has no obligation to investigate or take any further action.

Opinion 17-164 A judge who has reliable, first-hand knowledge in his/her appellate capacity that another judge is willfully disregarding both his/her judicial duties and a court order instructing him/her to perform those duties as necessary for an appeal, to the litigants' detriment, must report the other judge's conduct to the Commission on Judicial Conduct.

Opinion 17-147 A judge who receives a phone call from another judge concerning an unspecified case before him/her, but who never learns any information sufficient to identify the case, has no obligation to take any action concerning the other judge’s conduct. The judge has full discretion to take, or not take, any steps concerning the other judge’s conduct as he/she deems appropriate.

Opinion 17-135 A judge who has first-hand knowledge that another judge improperly attempted to influence the outcome of a case before him/her must report the other judge to the Commission on Judicial Conduct.

Opinion 17-116/17-132 (1) A judge must determine whether he/she has information indicating a substantial likelihood that another judge or an attorney has committed a substantial violation of the applicable professional ethics rules and, if so, must take appropriate action. (2) If the judge concludes the two-prong test is met and further concludes that another judge improperly attempted to influence the outcome of a case, the appropriate action is to report the other judge to the Commission on Judicial Conduct.

Opinion 17-48 The inquiring part-time attorney judge must report to the Commission on Judicial Conduct that another judge, while presiding over a case, threatened to file a disciplinary complaint against the inquirer unless the inquirer’s client settled the case for a particular sum.

Opinion 16-46 (1) A judge who concludes that grave inconsistencies at the core of another judge’s sworn testimony concerning his/her performance of judicial duties constitute perjury or intentional deception must report the witness-judge to the Commission on Judicial Conduct. (2) Conversely, if he/she concludes the witness-judge did not deliberately testify falsely or intentionally attempt to mislead the court, then he/she has full discretion to take some other, less severe action appropriate to the circumstances.

Opinion 15-138/15-144/15-166 (1) Where a judge has no direct personal knowledge whatsoever about purported misconduct of another judge, he/she has particularly wide discretion to make a threshold decision, based on information the judge has already received, of whether there is a “substantial likelihood” of a substantial violation under all the circumstances currently known to him/her. (2) If a judge believes the information he/she has is mere rumor, gossip, or innuendo, or is otherwise not sufficiently reliable or credible to warrant further consideration, the “substantial likelihood” prong is not met, and the judge is not ethically required to take any action at all. (3) Conversely, if the judge concludes, in his/her sole discretion, that the “substantial likelihood” prong is met, he/she must then consider whether the “substantial violation” prong is met and, if so, must also determine what action is appropriate under the circumstances presented.

Opinion 15-124 Under the circumstances presented, the inquiring judge must report to the Commission on Judicial Conduct another judge’s attempts to use the prestige of judicial office to influence the outcome of a family member’s criminal case.

Opinion 15-119 Where a county court judge is aware a town justice presided over an arraignment and then requested the matter be transferred due to a purported conflict, but lacks relevant details of the purported conflict, the judge need not take any further action.

Opinion 15-94 A judge who receives reliable information that a more senior judge, who has administrative or supervisory responsibilities, displayed impatient, discourteous, and undignified behavior on the bench, made unprovoked threats to alter another judge's order in the case sua sponte to suit the more senior judge's personal preferences, and repeatedly refused to consider or decide the issues before him/her, must report the more senior judge’s conduct to the appropriate administrative judge.

Opinion 15-70 What is a judge's ethical obligation when he/she learns that another judge appeared in his/her court and attempted to influence the outcome of a relative's case?

Opinion 14-162(A) Must a judge report to the Commission on Judicial Conduct another judge’s misconduct which he/she personally witnessed and has concluded is a substantial violation of the Rules Governing Judicial Conduct, when the judge also has credible information the other judge has self-reported the conduct to the Commission?

Opinion 14-140 Must a judge report his/her co-judge after learning from his/her court clerks that they overheard the co-judge engaging in ex parte, off-the-record communications with a prosecutor and his/her witness, advising them how to present certain evidence at the next phase of the case?

Opinion 14-86 A judge who, in the course of presiding over a criminal case, learns that the judge who arraigned the defendant and signed a securing order had also signed the underlying criminal complaint, must report the arraigning judge to the Commission on Judicial Conduct.

Opinion 14-50 A judge is not required to take any action in furtherance of his/her disciplinary responsibilities merely because a law enforcement officer has, in the course of testifying about possible criminal activity on the part of a criminal defendant, mentioned the names of one or more attorney(s) and judge(s).

Opinion 13-146 A judge who learns that his/her co-judge has provided professional assistance to one side in connection with an ongoing matter that originated in the judges’ court, and over which the co-judge personally presided at an earlier stage, must report the co-judge to the Commission on Judicial Conduct.

Opinion 13-71 The inquirer has become aware that another judge presided over a matter in which that judge's own current disciplinary counsel appeared; is reporting mandatory?

Opinion 13-70/13-74 A judge’s request that local authorities further investigate a crime that allegedly occurred in the court office, standing alone, does not rise to the level of a “substantial likelihood” that the judge has violated the Rules Governing Judicial Conduct.

Opinion 13-69 When is a judge required to report another part-time lawyer/judge for engaging in misconduct?

Opinion 13-55 Is a judge required to report the alleged misconduct of an Administrative Law Judge (ALJ) to the Commission on Judicial Conduct and/or to the department that employs the ALJ?

Opinion 12-166 Must a judge report another judge's conduct occurring during a private dispute with a court employee which took place on court premises?

Opinion 11-08 On these facts, must a judge report their co-judge for conduct the judge believes to be ethics violations and abuses of power?

Opinion 10-181 A judge who learns that another judge arraigned a defendant on a charge of driving while intoxicated and set bail, appeared at the jail shortly thereafter, posted the bail using a check drawn on the judge’s spouse’s bank account and, after signing his/her spouse’s name on the bail documents to secure the defendant’s release, drove the defendant home should report the matter to the Commission on Judicial Conduct.

Opinion 10-175 A judge who receives a letter from another judge in support of an application that is pending in the receiving judge’s court, under circumstances that indicate to the receiving judge that the letter was not solicited by an appropriate agency, must report the letter writer to the Commission on Judicial Conduct.

Opinion 10-14 An inquiring judge must report to the Commission on Judicial Conduct the fact that another judge offered to have a police officer destroy a traffic ticket the officer issued to the inquiring judge’s relative.

Opinion 09-190 Before a judge must take action with respect to another judge’s possible misconduct, the judge must have information indicating a substantial likelihood that the other judge has committed a substantial violation of the Rules Governing Judicial Conduct.

Opinion 09-132 Must a judge report an individual who sent in a handwritten note requesting an adjournment on behalf of the defendant, where the judge realized, after granting the adjournment on the merits, that the enclosing envelope listed the individual's judicial title in the return address stamp?

Opinion 09-113 A part-time lawyer judge should report another part-time lawyer judge to the Commission on Judicial Conduct because, on multiple occasions, the other part-time lawyer judge has committed a substantial violation of the Rules Governing Judicial Conduct by practicing law in the part-time lawyer judge’s court.

back to Discipline

... by Court Personnel (non-attorneys)

Opinion 22-65 Application and enforcement of the Office of Court Administration’s work schedule policies to non-judicial court personnel are primarily administrative matters, which the Committee cannot address.

Opinion 20-16 On these facts, a judge who learns a non-judge court employee engaged in multiple ex parte conversations with one side in an ongoing contested matter before the judge, and attempted to assist that side by using his/her special access as a court employee to provide insider information and advice, must (1) report the situation to appropriate court administrators, (2) direct the employee to be insulated from further case contact, (3) disclose the incidents the judge has become aware of to the lawyers and parties on the record, and (4) direct the lawyers to admonish their clients not to engage in ex parte communication about the case with court personnel.

Opinion 20-15 On these facts, where a judge discovered a clerical court employee’s apparent misconduct after the affected case had already been adjudicated and the judge has already reported all the facts he/she learned to appropriate court administrators, the judge need not take any further action.

Opinion 19-155 ... (3) A judge who concludes he/she has a reasonable, good-faith basis to question the firearm authorization status of a police officer who has been designated to provide security in the judge’s courtroom may, but is not required to, meet with the village police chief concerning the issue. If the judge concludes the officer is not properly authorized, trained, and/or licensed to carry a firearm, he/she may take any lawful measures to ensure order and decorum in his/her courtroom, including, but not limited to, objecting to the officer’s placement in his/her courtroom and consulting with court administrators on how to proceed.

Opinion 18-136 A village justice with no direct or independent knowledge of alleged misconduct by a court officer has no obligation to investigate or take any action.

Opinion 16-103 Where a town or village justice has already reported substantial and troubling irregularities by a co-judge's court clerk to a supervising judge, and taken steps to ensure that the clerk will have no further contact with his/her files, does the judge have any obligation to take further action?

Opinion 15-189 What are a judge's obligations on learning of substantial and troubling irregularities in his/her court arising from the conduct of a former town court clerk, as well as possibly improper behavior by a former town justice?

back to Discipline

... by Litigants, Witnesses, and Others (non-attorneys)

Opinion 21-165    (1) Where court staff have relayed to a judge certain remarks made openly by a physician witness while waiting for the case to be called, and the judge concludes those remarks reflect gender and other bias and a lack of professionalism to a level that could directly impact the doctor’s credibility and/or might be relevant in evaluating the conclusions reached in the physician’s report, the judge (a) may, but need not, report the remarks to an appropriate authority...

Opinion 21-137    May a court attorney-referee report a litigant to the DA’s office for perjury? If so, are there "any specific rules" for the court attorney-referee to follow?

Opinion 20-127 What are a judge’s ethical obligations on learning, from the attorneys’ own submissions in a case, that their clients failed to file tax returns for multiple years?

Opinion 20-17 A judge may, but is not ethically required to, report a non-attorney who attempted to appear before the judge on behalf of a “client.”

Opinion 19-155 (1) A judge may, but is not required to, disclose his/her concerns to any appropriate authority, including the village police chief, about whether a newly appointed provisional village police officer has proper legal authority and credentials to carry a firearm. (2) A judge who concludes he/she is legally authorized or required as a firearms licensing officer to initiate an investigation into the propriety of the new officer’s possession of a pistol may take whatever steps he/she deems legally permitted or required in that capacity. ...

Opinion 19-123 Where a judge believes a county official, who is neither an attorney nor a judge, is incapable of meeting the requirements of his/her position, must he/she report the official to his/her employer?

Opinion 19-96 Must a judge report to the District Attorney that a non-party appeared as counsel in a case before him/her in violation of Judiciary Law §478?

Opinion 19-90 Where a law firm’s former paralegal apparently forged the judge’s signature on a divorce judgment and pretended it had been appropriately filed, and the judge has serious concerns about the firm’s supervision of and reliance on the paralegal, the judge ... (2) need not take any action concerning the former paralegal, who is neither an attorney nor a judge. As always, if the judge believes the conduct was unlawful, the judge may, in his/her sole discretion, report it to an appropriate prosecutor’s office and/or law enforcement.

Opinion 19-84 Where a judge believes a recording, disclosed in an unsuccessful defense motion for a protective order in a now-completed criminal trial, reveals illegal conduct by a non-attorney/non-judge third party: (1) the judge may, but need not, provide a copy to the prosecutor; and (2) absent a law or ethics rule requiring defense counsel to produce the recording, the judge need not take any action concerning defense counsel's failure to do so.

Opinion 19-54 Must a judge contact the DA’s office on learning that the DA’s non-attorney diversion program coordinator purportedly gave advice to a defendant concerning a guilty plea?

Opinion 19-45 A support magistrate may report a litigant’s apparently criminal conduct to law enforcement but is not ethically required to do so. Whether and how he/she may do so in compliance with applicable statutes and regulations raises a legal question, not one of judicial ethics.

Opinion 19-26 What ethical obligations does a judge have on learning of possible criminal activity by his/her tenant on premises the judge owns?

Opinion 19-10 Must a judge report his/her former housekeeper who has disclosed an ongoing medical fraud to the judge?

Opinion 18-150 Must a judge report a non-attorney defendant who, on the eve of sentencing, falsely alleged that he/she knew the judge socially?

Opinion 18-140 What are a judge’s obligations on learning that a non-attorney may have drafted legal memoranda for an attorney?

Opinion 18-28 (1) The judiciary has a strong interest in bringing to light possible repeated or systemic perjury or corruption on the part of institutional witnesses which, if unaddressed by appropriate authorities, could adversely affect the judicial process and undermine public confidence in the judiciary. (2) Thus, a judge, any time in his/her sole discretion, may forward published decisions that appear to involve corrupt or perjured police officers to an appropriate investigative authority, including a police department's Inspector General. Such conduct is not impermissible merely because the Inspector General requested them. (3) Absent a legal duty to comply with the Inspector General's request, a judge may, in his/her sole discretion, decline to respond.

Opinion 17-07 Must a judge report a real estate agent who forged his/her name on a letter of reference, mentioned the judge’s judicial status, and submitted the letter to a co-op board without the judge’s knowledge or consent? 

Opinion 16-154 May a judge disclose his/her habitability concerns to a local code enforcement officer? May the judge also issue a warrant for the code enforcement officer to enter the premises?

Opinion 16-25 May a judge notify a police officer's commander of the officer's non-compliance with a legal mandate?

Opinion 15-153 Must a judge report to the probation department that an individual appearing before the judge has violated his/her probation?

Opinion 14-189 Under the specific circumstances presented, where a judge has issued a written decision indicating the judge’s impartiality has been compromised in a new case involving a particular litigant, based on the litigant’s recent disparaging remarks about the judge in connection with a recently concluded case, the judge must disqualify him/herself from all cases involving the litigant, including in any post-judgment proceedings in the recently concluded case, and the disqualification is not subject to remittal.

Opinion 14-122 Is a judge required to report certain conduct of a notary public which may violate the Executive Law, when the notary is not a judge or an attorney?

Opinion 14-121 A judge who chose to recuse him/herself in one case after a litigant filed a complaint about the judge may nonetheless preside over other cases in which that litigant appears, provided the judge can be fair and impartial.

Opinion 13-35 Must a judge advise the police that a prospective tenant the judge interviewed has an open bench warrant from the court where the judge presides?

Opinion 12-180 Must a judge report a litigant and/or the litigant's attorney where the litigant asserted in an affidavit that he/she lied to the court and that his/her counsel advised him/her to do so, and in subsequent papers denied perjuring him/herself or intentionally lying to the court?

Opinion 11-33 A judge may not disclose facts about a case pending before him/her to a legislator in the belief that the legislator would investigate possible wrong-doing by a child welfare agency but may discuss his/her concerns with his/her administrative judge.

Opinion 10-50 A court attorney referee is not obligated by the Rules Governing Judicial Conduct to report to law enforcement conduct by a defendant in a matrimonial matter that was described by the plaintiff in the matter during a hearing in which the court attorney referee presided, nor is he/she precluded from doing so.

Opinion 09-171 Must a judge report a litigant the judge believes offered a false instrument for filing?

back to Discipline

Unauthorized Practice of Law / Ghostwriting

Opinion 20-17 A judge may, but is not ethically required to, report a non-attorney who attempted to appear before the judge on behalf of a “client.”

Opinion 19-96 Must a judge report to the District Attorney that a non-party appeared as counsel in a case before him/her in violation of Judiciary Law §478?

Opinion 19-54 Must a judge contact the DA’s office on learning that the DA’s non-attorney diversion program coordinator purportedly gave advice to a defendant concerning a guilty plea?

Opinion 19-48 What are a judge’s obligations on receiving correspondence from opposing attorneys in a case expressing differing views on whether a suspended attorney was wrongly practicing law?

Opinion 18-140 What are a judge’s obligations on learning that a non-attorney may have drafted legal memoranda for an attorney?

Opinion 13-173 Does a judge have an ethical obligation to report an unidentified, unlicensed law school graduate who allegedly assisted, for remuneration, a pro se litigant in preparing a memorandum of law in support of a motion (also known as "ghostwriting")?

Opinion 10-204 Must a judge report an attorney who admitted anonymously preparing papers on behalf of an unrepresented litigant (also known as "ghostwriting") in opposition to an application pending before the judge?

back to Discipline

General Principles - Timing of Making Report; Effect of Prior Reports; No Duty to Investigate; No Duty to Self-Report

Opinion 22-33 On these facts, a judge presiding in a criminal case need not investigate the timing of another judge's prior recusal in the matter nor take any further action.

Opinion 20-201 Must a judge report information sent to them by a third party which alleges misconduct by local law enforcement agencies and the local district attorney’s office, where the judge has no first-hand knowledge of the alleged misconduct and is unable to ascertain whether any particular attorney has likely violated any ethical rules or rules of professional conduct?

Opinion 20-191/20-192 Where a judge hears conflicting reports about another judge's possible comments at a meeting, but has no personal knowledge of these comments and is unable to conclude there is a substantial likelihood that the other judge said anything improper, they have no obligation to take any action.

Opinion 20-213 A judge with personal knowledge that an attorney knowingly assisted a client in effectuating a transfer of disputed real estate under false pretenses must report the misconduct to the appropriate grievance committee. Reporting may await the conclusion of proceedings. After making the report, the judge is disqualified in all matters involving the attorney, both while the disciplinary matter is pending and for two years thereafter.

Opinion 20-207 Where a judge has already determined that it is necessary to report another judge for an apparent incident of “ticket-fixing,” the judge is not relieved of the duty to report merely because the other judge resigned from the bench in the interim.

Opinion 19-107 (3) The judge may wait until the conclusion of the proceeding before reporting the attorneys.

Opinion 18-176/18-176(A)/18-177 (3) If a judge concludes that it is mandatory to report an attorney’s possible misconduct under the circumstances known to him/her, but knows the alleged misconduct has already been reported to the appropriate disciplinary authority, he/she need not personally report that alleged misconduct.

Opinion 18-170 A judge who has personal knowledge that a prosecutor has failed to make certain disclosures to the defense must determine, based on facts and circumstances known to the judge, whether there is a substantial likelihood the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. The judge may, in his/her discretion, wait until the proceeding ends to take any such action.

Opinion 18-58 (3) Even if the judge concludes that reporting to the attorney grievance committee is mandatory under the circumstances, the judge may wait until after the case is over before making the report in order to avoid the need for immediate disqualification in all matters involving the attorney.

Opinion 17-177 Where a judge has reliable, first-hand knowledge that another judge attempted to use his/her judicial status to influence the bail decision in a family member’s criminal case, but the other judge never revealed his/her name: ... (2) if the judge does not know the other judge’s identity, he/she has no obligation to investigate or take any further action.

Opinion 17-156 Must a full-time judge report him/herself to the Commission Judicial Conduct on realizing he/she improperly joined a for-profit investment club ?

Opinion 15-231 ...May the judge wait until the proceeding ends before taking [any disciplinary] action [against an attorney]?

Opinion 15-180 Where a judge has received information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, and has further concluded that the apparent misconduct seriously calls into question the attorney's honesty, trustworthiness or fitness to practice law, may the judge nonetheless refrain from reporting the apparent misconduct to the grievance committee if (a) the misconduct was covered extensively in the media and (b) the judge believes the attorney's former employer may have reported the misconduct?

Opinion 14-189 Under the specific circumstances presented, where a judge has issued a written decision indicating the judge’s impartiality has been compromised in a new case involving a particular litigant, based on the litigant’s recent disparaging remarks about the judge in connection with a recently concluded case, the judge must disqualify him/herself from all cases involving the litigant, including in any post-judgment proceedings in the recently concluded case, and the disqualification is not subject to remittal.

Opinion 14-162(A) Must a judge report to the Commission on Judicial Conduct another judge’s misconduct which he/she personally witnessed and has concluded is a substantial violation of the Rules Governing Judicial Conduct, when the judge also has credible information the other judge has self-reported the conduct to the Commission?

Opinion 14-121 A judge who chose to recuse him/herself in one case after a litigant filed a complaint about the judge may nonetheless preside over other cases in which that litigant appears, provided the judge can be fair and impartial.

Opinion 12-128 A judge need not disclose that a party to pending litigation has filed an ethics complaint against a court-appointed expert, where the judge learned of the complaint when an investigator from the disciplinary authority requested a copy of the expert's confidential report.

Opinion 09-243 Where the judge has reported certain alleged violations of the election law to the District Attorney, must the judge take any action if the judge believes the District Attorney has failed to act on this information?

Opinion 09-164 What should a judge do on realizing that they may have been without jurisdiction to hear and adjudicate certain proceedings?

back to top

 

Public Advocacy or Public Comment; Fund-Granting Recommendations

(See e.g. 22 NYCRR 100.4[C][1]-[2]; 100.4[C][3]b][iii]; 100.5; 100.2[C]; 100.3[B][8]; et al.)

Sub-Topics: Administrative Hearings, Proceedings, or Applications | Amicus Briefs | Assigned Counsel Plan | Bail Reform | Clemency, Parole, or Pardon | Constitutional Convention | Court Structure, Operations, or Funding; Terms and Conditions of Judicial Service; Court Personnel | Executive or Legislative Policy | Funding Recommendations | Legislative Advisory Committee | Local Law or Policy | Litigation | Media | Penal Law | Redistricting | Substantial Local Controversy| Union Contract Renewal

Opinion 22-41 May a judge write a law review article "that would review statutory, regulatory and administrative efforts to address the intersection of domestic violence and child protection in NY and 3 other states"?

Opinion 22-04 Subject to certain limitations, a full-time judge may share with the head of a children’s services agency the judge’s observations of agency operations and procedures used when removing children from their homes.

Opinion 21-90 May a town justice, either individually or together with a county magistrates' association, lobby the state legislature for a law which would permit centralized arraignments to be handled via electronic means on a local level?

Opinion 21-24 On these facts, a judge may not participate in an interview with a local news station regarding the experiences of the judge’s first-degree relative at a local nursing home.

Opinion 20-136 A judge may write and submit an opinion article to a legal publication outlining what the judge considers flaws in an instrument that judges are currently required to use to assess the potential risk of re-offense.

Opinion 20-112 Where multiple high-profile, racially-charged incidents of police violence have resulted in ongoing or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in an initiative designed to (a) promote trust and open dialogue between activists and police concerning those incidents and/or (b) recommend changes to current police force deployments, strategies, policies, procedures, and practices. [NOTE: This opinion addresses Executive Order 203.]

Opinion 20-96 A part-time judge may serve on a county executive’s working group to review training at the county police academy, where the group’s membership is balanced and its goal is to help reduce and eliminate implicit bias. The judge must, however, be mindful of the need to maintain public confidence in his/her impartiality and must take particular care not to comment on any pending or impending case in the United States or its territories.

Opinion 20-92/20-93 On these facts, a judge may not participate in a silent “walk for justice.”

Opinion 20-70 Where a not-for-profit, non-partisan town Grange engages in significant educational initiatives to promote rural interests and an appreciation of agriculture but also engages in advocacy and lobbying with local governments concerning local laws, policies and regulations, a town judge (1) may join the entity as a regular member but (2) must not assume leadership roles in the entity or otherwise publicly associate him/herself with organizational positions on controversial issues.

Opinion 20-64 May a part-time lawyer judge ... (3) as a full-time college professor, comment on cases, regulations, or politics...?

Opinion 20-38 (1) A judge may discuss pending or impending matters with other judges and court clerks at a magistrate’s association meeting, assuming this is a confidential setting with no others present. (2) Where a judicial association’s email contact list includes individuals who are not judges or court personnel, a judge cannot assume the emailed discussions are confidential or private and therefore must take particular care to observe generally applicable limitations on judicial speech.

back to Public Advocacy

Administrative Hearings, Proceedings, or Applications

Opinion 20-205 On these facts, a full-time judge may not accept a speaking engagement to discuss a not-for-profit organization’s experience in navigating a highly controversial licensing application and appeal process.

Opinion 19-152 May a full-time judge appear at an upcoming agency meeting in support of a not-for-profit entity’s license application, where the judge is a co-founder, officer and director of the entity, and has specialized professional skills and training relevant to the license application?

Opinion 19-126 May a full-time judge, as one of two directors of a not-for-profit entity, speak at a public hearing before a regional EMS council concerning the entity's application for a license to own and operate an emergency vehicle?

Opinion 15-92(B) May a judge write and forward a consular letter of invitation inviting family members to visit the judge in the United States, where this letter will set forth facts concerning the judge's income and its source in order to demonstrate that the judge is a responsible person who is able to meet the material and accommodation needs of the persons invited? If so, may the judge use judicial stationery for such a letter?

Amicus Briefs

Opinion 22-37 On these facts, an administrative judge may not authorize a court-sponsored committee or commission to file an amicus curiae brief.

Opinion 19-159 A judicial association may not submit an amicus curiae brief in an Article 78 proceeding against an individual judge.

Opinion 16-178 A judicial association may not submit an amicus brief to the Court of Appeals in a pending appeal to express its members' concern, as trial judges, about the practical effects of a recent Appellate Division decision that trial judges lack statutory authority to take a particular action in connection with sentencing. The judicial association and/or individual judges may instead propose changes to applicable statutes which affect sentencing procedures in their courts. However, if it is not possible to advocate for the desired statutory change without publicly commenting on a specific, identifiable case, they must wait until the case is completely resolved.

Assigned Counsel Plan

Opinion 21-167    A judge may respond to the county comptroller’s survey concerning the county’s assigned counsel program, subject to generally applicable limitations on judicial speech and conduct.

Opinion 16-145 May a county Magistrates Association, at the request of a bar association and the county executive, comment on the bar association's proposed assigned counsel plan before it is implemented by the county?

Bail Reform

Opinion 20-42 Subject to generally applicable limits on judicial speech and conduct, a judge may publicly comment on the recently enacted bail reform legislation to identify perceived strengths and weaknesses and to suggest the legislature seek additional comments or testimony to improve the law. On these facts, given the controversial nature of the topic, the judge should not refer to his/her current or prior affiliation with a court committee or judicial association unless that entity authorizes him/her to do so.

Opinion 18-78 May a magistrates' association issue a resolution supporting or opposing changes in the law concerning a local judge's ability to set bail in various misdemeanor cases? If so, is it also ethically permissible to send the resolution to local legislators and/or the press?

Opinion 18-15 A judge may not serve on a local committee to address bail reform whose membership will consist exclusively of defense representatives and community members since the organizers have declined to invite any prosecutorial, police, or law enforcement agency representatives.

back to Public Advocacy

Clemency, Parole, or Pardon

Opinion 19-95 May a judge write a letter in support of an inmate’s clemency application at the request of the inmate or his/her attorney, describing the judge’s personal observations of the inmate’s participation and leadership role in a youth outreach program offered at the correctional facility where the inmate is incarcerated?

Opinion 19-21 A judge may not suggest or recommend that an inmate make an application to the governor’s office of clemency nor may the judge take affirmative actions in furtherance of that suggestion or recommendation.

Opinion 17-77 A judge may be a housing resource for a third-degree relative on parole, but may not use the prestige of judicial office to seek exceptions to the parole board's procedures.

Opinion 16-27 May a judicial hearing officer write a letter supporting an inmate's efforts to gain parole and/or clemency?

Constitutional Convention

Opinion 19-120 (1) A full-time judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service, and may do so by (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to public officials, governmental bodies, and labor unions; (c) testifying at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee. (2) A judge and judicial association should use discretion when expressing a position on social media.

Opinion 16-94 May a judge take a public position on whether a constitutional convention should be convened in an upcoming referendum?

Opinion 16-60 May a judge join an informal discussion group with politically connected people to develop detailed proposals for redistricting reform, comprehensive election and voting reforms, restructuring the legislature, changes in school funding, and other highly controversial or political matters?

Court Structure, Operations, or Funding; Terms/Conditions of Judicial Service

Opinion 21-158    May a county magistrates’ association comment on the District Attorney’s proposal to the county legislature to abolish local justice courts in favor of a district court system in the county?

Opinion 21-147    A judicial association may publicly condemn the deliberate and unauthorized disclosure of a judge's residential address, as such disclosures may compromise the personal safety and security of judges and/or court personnel and thus affect the administration of justice.

Opinion 21-121    May a full-time judge write to members of the county legislature to emphasize the urgency of completing certain repairs to the courthouse, to encourage them to proceed promptly, and to suggest using certain federal monies the county has received?  If so, may the judge also encourage other local judges to express support for completing these courthouse repairs? 

Opinion 21-91 May a judge contact their legislators in order to ascertain what steps are necessary to initiate legislation in order to create an additional judgeship in the judge’s court to handle the increased caseload and enlist their support in obtaining such legislation?

Opinion 20-202 After receiving any administrative approvals that may be required, judges may collaborate with the Historical Society of the New York Courts on a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.

Opinion 19-120 (1) A full-time judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service, and may do so by (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to public officials, governmental bodies, and labor unions; (c) testifying at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee. (2) A judge and judicial association should use discretion when expressing a position on social media.

Opinion 18-08 A judge, who is working with prosecutors and defense lawyers to establish a local problem-solving court addressing mental health issues, may ask state legislators for financial support for this project.

Opinion 17-123 A judge who presides in veterans treatment court may write to legislators asking for names of potential peer mentors to work with veteran-defendants in the program, provided the judge avoids both actual coercion and its appearance when requesting participation. Alternatively, the judge may authorize his/her resource coordinator or mentor coordinator to write such a letter.

Opinion 16-116 May a full-time judge who presides over criminal arraignments appear at public meetings of the county legislature and other governmental boards or agencies to advocate for: ... (2) "a centralized district court or arraignment court to speed the process and assure that the People and the defendant are represented"?

Opinion 16-89 Where a municipality has previously declined to add court officers' names to a memorial honoring first responders who died during rescue efforts following a terrorist attack, may a judge nonetheless write a letter urging the municipality to add those names?

Opinion 15-98 May a magistrates' association send a letter expressing its position on legislation addressing a perceived disparity in the distribution of monies collected by New York's town and village courts, which affects the operation of such courts?

Opinion 15-48 May a magistrates' association publicly support a resolution urging a legislative change to assist local taxpayers in funding their local justice courts?

back to Public Advocacy

Executive or Legislative Policy

Opinion 20-209 A full-time judge may not be a member of a bar association task force organized to monitor and discuss fiscal and human rights issues faced by residents of a United States territory.

Opinion 19-106 A judge may not write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations.

Opinion 17-38  ... (2) May a judge (a) call a Senate Committee to express an opinion on a pending federal executive branch appointment; (b) sign a MoveOn.org petition concerning a federal executive branch appointment; and/or (c) participate in a local political rally, march or demonstration sponsored by grassroots organizations? 

Funding Recommendations

Opinion 20-202 After receiving any administrative approvals that may be required, judges may collaborate with the Historical Society of the New York Courts on a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.

Opinion 20-144 A judge may not lend the prestige of judicial office to unequivocally support a grant application of a transition program without addressing any necessary objective facts, qualifications and/or information concerning the judge’s perspective, and personal knowledge and experience with the program.

Opinion 18-185 A judicial association and its members may express views supporting or opposing a funding increase for the Commission on Judicial Conduct in next year's budget both (1) in writing to the Governor and members of the legislature; and (2) in meetings with members of the Executive Chamber or members of the legislature.

Opinion 16-116 May a full-time judge who presides over criminal arraignments appear at public meetings of the county legislature and other governmental boards or agencies to advocate for: (1) increased staffing for the District Attorney and Public Defender so they can appear at criminal arraignments and perform their other duties and/or (2) "a centralized district court or arraignment court to speed the process and assure that the People and the defendant are represented"?

Opinion 16-95/16-107 May a judge write a letter on behalf of a not-for-profit organization's grant application to improve the law, the legal system and the administration of justice, where the application (if granted) will specifically assist crime victims?

Opinion 16-02 May a judge partner with, or commit the court to partner with, entities applying for a grant to create a domestic violence advocacy program? May the judge or the court participate in the ongoing administration of the resulting advocacy program?

Opinion 15-48 May a magistrates' association publicly support a resolution urging a legislative change to assist local taxpayers in funding their local justice courts?

Legislative Advisory Committee

Opinion 16-127 May a judge serving on an official court-sponsored legislative advisory committee participate in committee discussions relating to an ongoing proceeding?

back to Public Advocacy

Local Law or Policy

Opinion 22-44 A part-time town justice also employed full-time by a private employer may respond to another town’s request for public input on its zoning laws which prohibit that employer’s operations. In so doing, the judge must not reference the judge’s judicial title or status.

Opinion 20-198 A town justice may suggest that the town board amend the local leash law to include an additional, alternative sanction for violations of the ordinance, that would allow the court to order defendant dog owners to confine their repeat offender dogs in a manner that will prevent future violations.

Opinion 20-193 (1) A town justice may not speak at a town board meeting concerning a proposed town resolution opposing extension of the big game hunting season. (2) The judge may share a copy of the proposed resolution with others if it is a public record or if the town board has otherwise made it available to the public.

Opinion 19-137 A town justice may not write the town board expressing his/her personal view that a newly enacted local law was poorly drafted and offering proposed amendments to solve the problem.

Opinion 19-135 A town justice must not lobby the town board to adopt a policy prohibiting civil immigration arrests in the town court while a lawsuit challenging the legitimacy of such arrests in New York's courthouses remains pending or impending.

Opinion 17-18 A part-time judge may suggest that local legislators amend a penal statute to include a potential jail sentence so that, for alleged violations after the effective date, the court may issue an arrest warrant to produce recalcitrant defendants.

Opinion 16-78 May a town judge express his/her views to the town board concerning a proposed change to a local speed limit and its likely effect on public confidence in the courts?

Litigation

Opinion 21-133    Where a part-time lawyer judge is representing a client on a litigated matter, may the judge respond to media requests for information and comment on that matter? 

Opinion 20-179 A judge may not send a letter describing the court’s issuance of a bench warrant, where defense counsel has suggested the warrant was improper and could result in civil liability.

Opinion 20-150 A judge who appointed a receiver in a now-concluded case may not, either at the receiver's request or on his/her own initiative, intervene or support the receiver's petition for representation by the Attorney General's office in a civil lawsuit alleging the receiver committed fraud. However, if the AG's office contacts the judge concerning the receiver's application, the judge may properly respond to questions within his/her personal knowledge.

Opinion 19-133 (1) A part-time attorney judge who is opposing a motion to remove him/her as an attorney in a pending case may respond to media questions concerning the motion in his/her capacity as an attorney, provided he/she makes no reference to his/her status as a judge. (2) If the judge believes governing law prohibits him/her from providing certain details concerning the litigation, he/she may say so publicly.

Opinion 16-127 May a judge serving on an official court-sponsored legislative advisory committee participate in committee discussions relating to an ongoing proceeding?

Opinion 16-33 May a judge write a letter on behalf of a family member who has a criminal case pending in another state? Does it make a difference if the judge does not reveal his/her judicial status but writes solely in his/her personal capacity as the defendant's relative and as an individual who has previous professional experience as a prosecutor, a defense attorney, and a quasi-judicial official?

Opinion 16-62 May a judge who is a respondent in a CPLR Article 78 proceeding seeking to annul/vacate the judge's order in a pending criminal case comment on the criminal case in his/her answer or appearance in the proceeding?

Opinion 15-61 May a judge appear on a panel program to discuss a decision recently issued by the judge, when the time to appeal has not expired and an attorney who argued the case before the judge would be a fellow panelist?

Media

Opinion 21-133    Where a part-time lawyer judge is representing a client on a litigated matter, may the judge respond to media requests for information and comment on that matter? 

Opinion 15-165 May a judge provide the court's internal weekly case summaries to a newspaper for publication?

back to Public Advocacy

Penal Law

Opinion 16-135 May a judge publicly advocate for a change in the Penal Law by writing to executive and legislative bodies and/or officials, as well as other potentially interested parties? Must the judge notify local prosecutors and/or defense counsel of his/her proposal so they can respond to it?

Redistricting

Opinion 16-60 May a judge join an informal discussion group with politically connected people to develop detailed proposals for redistricting reform, comprehensive election and voting reforms, restructuring the legislature, changes in school funding, and other highly controversial or political matters?

Opinion 15-188 May a judge become involved in legislative redistricting under the facts presented?

Substantial Local Controversy

Opinion 22-54 A part-time village justice: (1) may serve as chair of a village traffic and safety committee, where the committee's role is strictly advisory concerning matters such as the location of signs and the judge's involvement will not involve the judge in political issues or matters of great public controversy that are likely to raise reasonable questions about the judge's ability to be fair and impartial; (2) may not serve on the board of the New York Bicycling Coalition, where the entity engages in advocacy and takes positions on issues of great public controversy; (3) may serve on the New York Coalition for Transportation Safety, where that entity focuses on educating the public and is not engaged in lobbying or involved in matters of great public controversy.

Opinion 20-105 Under the circumstances presented, a full-time judge should not participate, in any capacity, on a bar association subcommittee tasked with addressing issues concerning the upcoming elections.

Opinion 19-106 A judge may not write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations.

Opinion 19-29 A full-time judge ... (2) may not volunteer as an escort for individuals unknown to the judge who are visiting an abortion clinic in the presence of pro-life protesters.

Opinion 17-70 (1) A court attorney-referee who is an ordained rabbi may teach, preach, and write on Israel-related issues concerning the law, the legal system or the administration of justice, but not on non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict.

Opinion 17-38 (1) May a judge participate in the upcoming March for Science?

Opinion 16-89 Where a municipality has previously declined to add court officers' names to a memorial honoring first responders who died during rescue efforts following a terrorist attack, may a judge nonetheless write a letter urging the municipality to add those names?

Opinion 16-60 May a judge join an informal discussion group with politically connected people to develop detailed proposals for redistricting reform, comprehensive election and voting reforms, restructuring the legislature, changes in school funding, and other highly controversial or political matters?

Union Contract Renewal

Opinion 15-120 May a judge join in an advertising campaign intended to lobby political support and funding for union contract renewals for the judge's alma mater?

 

back to top

 

Reference Letters (Job, School, Award); Fact Witness; Character Witness; Testimonials; Miscellaneous Intervention in Ongoing Applications or Proceedings

(See 22 NYCRR 100.2[C].)

Sub-Topics: Reference for Job, School or Award | Fact Witness | Character Witness | Bar Admission (initial application) | Ongoing Applications or Proceedings | Testimonials; Feedback; Reviews | Judge's Alma Matter

Reference for Job, School or Award

Opinion 21-177 May a judge, at the request of an assistant district attorney who regularly appears before them, write a letter of recommendation in support of the attorney's application for employment as a federal prosecutor? 

Opinion 21-160 May a judge with relevant personal knowledge write a letter supporting a nonjudicial court employee’s request for a promotion?

Opinion 21-130 May a judge write a letter in support of a court clerk's request for promotion within the court system, based on personal knowledge?

Opinion 21-68 A judge in a large urban court may write a letter of reference for a sheriff’s deputy supervisor seeking to be promoted, based on the judge’s personal knowledge of the deputy, where the deputy supervises others who provide court security and is thus unlikely to appear before the judge.

Opinion 20-196 A town justice may respond to an inquiry from the town board and/or town supervisor concerning the performance of a town employee who has appeared before the judge for several years. The judge may comment on matters within the judge’s personal knowledge and observation, which may include their opinion about the employee’s ability to apply the law, knowledge of the law, and overall quality of work.

Opinion 19-116 Where a judge has relevant personal knowledge of a job applicant, a familial relationship between them is no bar to providing an employment reference. Thus, a judge may write an employment reference letter for a relative just as he/she would for other applicants unrelated to the judge.

Opinion 19-118 May a judge send an employment reference letter on behalf of a longtime friend to a prospective employer that does not appear before him/her?

Opinion 17-134 (2) May a judge provide an employment reference for an attorney who is a former colleague? What are the judge's ethical obligations in matters involving the attorney and his/her new employer if he/she does provide a reference?

Opinion 16-38 May a judge presiding in a large urban criminal court write a reference for a police officer seeking to be promoted based on personal knowledge of the officer, which predates the judge's assumption of judicial office?

Opinion 15-173 May a judge write a letter supporting a court officer's request to be assigned to the judge's courthouse?

Opinion 15-139/15-140 May a judge serve as a reference for someone who recently appeared before the judge as a defendant/participant in a treatment-oriented problem-solving court?

Opinion 15-101 May a judge who presides in a treatment-oriented problem solving court serve as a job reference for a defendant/participant who recently appeared before the judge, where the judge would merely provide objective observations based on reliable personal knowledge about the individual, drawn from many months of regular court appearances, reports and discussions?

Opinion 15-64 May a judge permit two defense attorneys who regularly appear before him/her to include the judge's name as a reference on an application nominating the judge's court attorney for an award from a legal publication?

Opinion 14-151 A judge may not serve as a reference for an individual who has recently appeared before the judge as a defendant/participant in a treatment-oriented problem-solving court.

Opinion 10-07 (1) Subject to certain limitations, a judge may write a letter of reference for an attorney who regularly appears in the judge’s court who is seeking other legal employment. 

back to Reference/Witness

Fact Witness

Opinion 21-174    (1) Provided the judge can be fair and impartial in the underlying criminal case, the judge need not disqualify if the judge or their law clerk cooperate as fact witnesses in a police investigation concerning a bench conference in which an active state trooper was identified solely as defense counsel’s “associate.” (2) The judge also need not insulate the law clerk, provided the judge is satisfied the law clerk can be fair and impartial.

Opinion 21-96 May a full-time judge provide, at the request of a lawyer representing the estate of a former client the judge knew professionally for many years, a “family tree affidavit” to be submitted in Surrogate's Court?

Opinion 20-196 A town justice may respond to an inquiry from the town board and/or town supervisor concerning the performance of a town employee who has appeared before the judge for several years. The judge may comment on matters within the judge’s personal knowledge and observation, which may include their opinion about the employee’s ability to apply the law, knowledge of the law, and overall quality of work.

Opinion 19-79 A supervising judge who received a request from the Commission on Judicial Conduct for counseling memos, corrective action plans, and personal notes related to his/her supervision of certain judges currently under disciplinary investigation is not ethically required to provide such materials voluntarily.

Opinion 18-176/18-176(A)/18-177 ... (7) A judge who is a potential fact witness in the case may, but is not required to, volunteer objective factual information concerning his/her personal observations to counsel for either side.

Opinion 18-138 (1) A judge with personal knowledge of relevant facts may testify as a fact witness in an attorney disciplinary proceeding, either voluntarily or pursuant to a subpoena. (2) The judge may provide a written factual statement at the request of the attorney’s lawyer, but its admissibility is a legal question.

Opinion 18-115 A judge may provide a letter to both sides in an ongoing proceeding which includes an excerpt from the transcript indicating that a particular issue has been resolved with no finding of medical abuse or neglect.

Opinion 18-128 May a full-time judge with relevant personal knowledge provide a factual affidavit attesting to the “bona fide good faith marriage” of a long-time friend to his/her immigrant spouse who seeks permanent residency?

Opinion 18-22 A new full-time judge who previously served as guardian ad litem in a federal case may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem; (2) respond to the federal judge’s questions about whether a new guardian ad litem should be appointed; and (3) appear pro se concerning his/her fees for work previously performed as guardian ad litem.

Opinion 16-106 May a full-time judge with relevant personal knowledge concerning a neighbor complete a Department of Social Services "Residency Verification" form which (a) requests strictly factual information concerning the names of all adults and children in the home; (b) requires the form be filled out by a professional who knows the applicant and his/her family; and (c) requires the signer to state his/her profession?

Opinion 14-103 (2) A judge may attest to and affirm facts within his/her personal knowledge and observation, including the judge’s recollection of witnessing the execution of a family member’s testamentary instrument, and the judge’s recognition of certain signatures or handwriting on the instrument.

Opinion 13-179 A judge may swear in an attorney to another state’s bar, where the other state’s board of bar examiners lists judges as one of several categories of acceptable witnesses.

Opinion 13-111 May a full-time judge who is a candidate for re-election, witness signatures on the judge’s own nominating petitions as a Notary Public?

Opinion 12-10 A judge may witness and authenticate a relative's signature on a foreign pension document, where the document lists "judges" as one of several categories of acceptable witnesses.

back to Reference/Witness

Character Witness

Opinion 22-69 A judge with relevant personal knowledge may provide a character reference for a longtime friend’s application to open a bank account overseas where the bank’s form requires a reference from certain designated professions, including judges.

Opinion 19-95 May a judge write a letter in support of an inmate’s clemency application at the request of the inmate or his/her attorney, describing the judge’s personal observations of the inmate’s participation and leadership role in a youth outreach program offered at the correctional facility where the inmate is incarcerated?

Opinion 18-135 May a judge submit a character reference letter on behalf of a long-time friend who has been charged with a federal crime?

Opinion 16-41 May a judge, at the request of an attorney who recently appeared before him/her as the subject of a Treatment Court proceeding, voluntarily testify in the attorney's disciplinary proceeding?

Opinion 16-18 May a judge serve as a character reference for a court intern who has applied for a pistol permit?

Opinion 10-17 A part-time town justice may not serve voluntarily as a character reference for a friend who is applying for a pistol permit.

Opinion 09-202 May a judge, if subpoenaed, testify as a character witness in a criminal case pending in another state?

Bar Admissions

Opinion 13-179 A judge may swear in an attorney to another state’s bar, where the other state’s board of bar examiners lists judges as one of several categories of acceptable witnesses.

Opinion 10-62 May a judge sponsor and move the admission of the judge's child to practice in federal district court?

back to Reference/Witness

Other Ongoing Applications or Proceedings

Opinion 22-69 A judge with relevant personal knowledge may provide a character reference for a longtime friend’s application to open a bank account overseas where the bank’s form requires a reference from certain designated professions, including judges.

Opinion 20-144 A judge may not lend the prestige of judicial office to unequivocally support a grant application of a transition program without addressing any necessary objective facts, qualifications and/or information concerning the judge’s perspective, and personal knowledge and experience with the program.

Opinion 19-126 May a full-time judge, as one of two directors of a not-for-profit entity, speak at a public hearing before a regional EMS council concerning the entity's application for a license to own and operate an emergency vehicle?

Opinion 19-95 May a judge write a letter in support of an inmate’s clemency application at the request of the inmate or his/her attorney, describing the judge’s personal observations of the inmate’s participation and leadership role in a youth outreach program offered at the correctional facility where the inmate is incarcerated?

Opinion 19-21 A judge may not suggest or recommend that an inmate make an application to the governor’s office of clemency nor may the judge take affirmative actions in furtherance of that suggestion or recommendation.

Opinion 15-92(B) May a judge write and forward a consular letter of invitation inviting family members to visit the judge in the United States, where this letter will set forth facts concerning the judge's income and its source in order to demonstrate that the judge is a responsible person who is able to meet the material and accommodation needs of the persons invited? If so, may the judge use judicial stationery for such a letter?

Opinion 15-74 May a judge who has personal knowledge of a convicted defendant awaiting sentencing in federal court, in response to a subpoena, submit an affidavit in letter form to the sentencing judge requesting leniency for the defendant?

Opinion 14-33 A judge may not, at the request of a friend who is seeking permission from a government agency to enter a foreign country, provide a letter of recommendation for submission to the government agency.

Opinion 11-16 A judge may not, at the request of a court employee, provide a letter for use in the employee’s disciplinary proceeding before the Office of Court Administration, but may authorize the employee to provide the judge’s name as a reference. Based on his/her personal knowledge and observations of the employee, the judge may then respond to a request from the Office of Court Administration for information about the employee.

Opinion 10-188 A judge may not provide a character reference letter to the District Attorney at the request of a relative of the defendant, even if the judge would write solely in a non-judicial capacity, without revealing his/her judicial status. The judge may provide such a letter to the District Attorney only in response to the District Attorney’s direct request.

Opinion 10-175 A judge who receives a letter from another judge in support of an application that is pending in the receiving judge’s court, under circumstances that indicate to the receiving judge that the letter was not solicited by an appropriate agency, must report the letter writer to the Commission on Judicial Conduct.

Opinion 10-07 (2) A judge may comply with a District Attorney’s request to prepare a Victim Impact Statement setting forth the judge’s views as to sentence only, for use when the defendant who forged the judge’s signature to court documents is sentenced.

Opinion 09-202 May a judge, if subpoenaed, testify as a character witness in a criminal case pending in another state?

Opinion 09-198 Do the Rules Governing Judicial Conduct preclude a judge's spouse from writing a letter to a Presiding Justice of the Appellate Division to support reinstatement of a disbarred attorney?

back to Reference/Witness

Testimonials; Feedback; Reviews

Opinion 20-108 A full-time judge who underwent surgery at a not-for-profit hospital may not participate in a web program concerning performance of the hospital during the pandemic, pursuant to a comprehensive release which authorizes the program’s use of the judge’s name, likeness, picture, image, voice, personality, personal identification information and/or protected health information for any purpose whatsoever in perpetuity.

Opinion 19-87 A judge may not write and publish an online review of a personal vacation or a professional vacation organized by a bar association or other professional organization.

Opinion 17-131 A judge may participate in an interview with a not-for-profit entity which provides mediation services in a court where the judge formerly presided, subject to certain limitations.

Opinion 15-193 A judge may write to the director of a federally funded medical facility expressing appreciation for care provided to the judge’s deceased parent, and may use judicial stationery marked “personal and unofficial” for this purpose. The judge may not send copies to federal legislators.

Opinion 15-103 A judge may not write a review of the professional services of his/her divorce lawyer on an online ratings service that displays individual reviews directly to the public, even if the judge’s review were anonymous with no reference to his/her judicial status.

Opinion 15-42  A judge and his/her family may, at a not-for-profit religious organization’s request, share their experience with its summer camp with other families who are considering sending their children to the camp. The judge’s family may thereafter accept the camp’s offer of a discount or a t-shirt or sweatshirt.

Opinion 15-21 A judge need not object to the county executive’s proposal to mention, during an upcoming state of the county address, that the judge is a satisfied user of a county-run public transportation system.

Opinion 14-85 (1) A judge may not provide a testimonial for the judge’s former campaign manager to use in advertisements, but may permit the former campaign manager to provide the judge’s name as a reference to prospective clients, subject to certain limitations.

Opinion 11-82 May the justices of a town court present a letter to the town board to be read into the minutes which recognizes and thanks all the individuals responsible for the upgrade of the court facilities?

Judge's Alma Mater

Opinion 21-170    A judge who completed a mediation skills program at a law school’s mediation clinic may permit the clinic to post the judge’s comments about the course and the judge’s experiences with alternative dispute resolution on its Instagram account for general advertising and recruitment efforts, provided the judge is satisfied the judge’s name, words, and image will not be used for fund-raising.

back to top

 

Business and Financial Activities; Gifts; Non-Legal Outside Employment

(22 NYCRR 100.4[D]; 100.6[B][1])

Sub-Topics: Outside Non-Legal Employment | Ownership Interests; Investments; Ownership, Management or Rental of Real Property | Gifts; Application for Scholarship, Fellowship, or the Like; Free Admission to Events | Miscellaneous Business or Financial Activities

Outside Non-Legal Employment

Opinion 22-68 A part-time town justice may simultaneously serve as an administrative law judge for a town code administrative bureau in the same town.

Opinion 22-48 May a part-time city court judge serve concurrently as a full-time executive director of a not-for-profit center for social and criminal justice, where the center will operate a mental health treatment facility that will not accept any defendants from the judge's jurisdiction?

Opinion 22-28 (1) An associate village justice may not simultaneously serve as deputy clerk/treasurer for the village. (2) An associate village justice may serve as (a) deputy clerk/treasurer for the town which encompasses the village, (b) deputy registrar of vital statistics for the village and/or (c) deputy registrar of vital Statistics for the town. 

Opinion 22-14 May a new full-time judge continue to serve as a part-time seasonal lifeguard with the New York State Office of Parks, Recreation and Historic Preservation and receive compensation?

Opinion 22-05 A part-time judge may serve as an applications systems analyst for the university police of a private, not-for-profit university in another county.

Opinion 22-01 May a part-time judge offer training and consultation to local city, town, and village governments regarding appropriate responses to “1st and 2nd Amendment audits”?

Opinion 21-189 A part-time judge may not maintain concurrent civilian employment as a dispatcher with the State University of New York police in the same county where the judge presides.

Opinion 21-173 A town justice may not accept employment as confidential secretary to the county sheriff, where the court’s calendar includes a substantial number of tickets issued by the sheriff’s deputies.

Opinion 21-84 A part-time lawyer judge may serve as a non-partisan hearing officer for the state board of elections to conduct civil enforcement hearings.

Opinion 20-200 On these facts, a full-time judge may not participate in a proposed not-for-profit corporation that would be exclusively controlled by the judge’s family and would feature the judge as its sole compensated lecturer with a sliding scale of fees.

Opinion 20-214 A part-time judge who is an ordained minister, and who is legally permitted to solemnize marriages in that capacity, may establish a for-profit business to solemnize marriages as an ordained minister and advertise such business, provided there is no use, mention or connection to the judge's judicial status.

Opinion 20-149 May a full-time Court-Attorney Referee answer the Governor’s call to be a poll worker, given this year’s shortage of workers as result of the global pandemic?

Opinion 20-129 May a full-time judge be trained, and thereafter serve, as an election poll clerk?

Opinion 20-95 A part-time judge may not serve as a business agent for a correction officers' union.

Opinion 20-76 A part-time judge may accept temporary employment with a bank to assist in evaluating loan applications from small businesses under the federal Paycheck Protection Program.

Opinion 20-64 May a part-time lawyer judge ... (3) as a full-time college professor, comment on cases, regulations, or politics; or (4) accept full-time employment as chief clerk of the County Court?

Opinion 20-54 A part-time judge may serve as the security manager for a local racetrack, which is outside the jurisdiction of his/her court.

Opinion 20-33 A part-time judge may not serve concurrently as business agent for a correction officers’ union, where the role requires representing the interests of corrections officers in the legislative or political sphere.

Opinion 20-04 A town justice may not serve as Stop-DWI Coordinator, even in another county.

Opinion 19-32 A part-time judge who is also a full-time college professor may participate in an academic research project analyzing data from the local centralized arraignment part’s first year of operation, and accept compensation from the college for this work pursuant to a grant administered by the office of court administration.

Opinion 19-07 A part-time town justice may be employed as a town trail maintenance worker, but must disqualify him/herself from cases in which his/her immediate supervisor or the department is a party, and from cases involving the trail. Remittal may be available.

Opinion 19-04 Must a town justice who also serves as an OCA approved transcriptionist disclose he/she has provided transcription services to attorneys when they appear before him/her?

Opinion 18-187 May a town justice serve as the appointed Secretary-Treasurer for the Fire District in the same town in which he/she serves?

Opinion 18-158 May a part-time town justice serve as police chief for a neighboring village, where the village police do not appear in the town court and the position is a “part-time, administrative” one?

Opinion 18-152 A part-time town justice may simultaneously serve as the appointed treasurer of the town’s taxpayer-supported fire district, where the judge has no involvement in the budgeting process but instead pays invoices after the fire commissioners’ approval.

Opinion 18-149 A part-time judge whose court has a significant criminal calendar, in which most defendants are represented by assigned counsel at arraignment, may not serve as deputy administrator of the assigned counsel program.

Opinion 18-148 A part-time justice may accept employment as a contract worker to review the court’s old files for destruction or preservation according to the Office of Court Administration’s records maintenance guidelines.

Opinion 18-106 A full-time court attorney-referee (1) may not teach yoga or meditation classes for a for-profit yoga studio, even if neither the studio nor the referee will benefit financially, but (2) may teach such classes for a not-for-profit organization and may use social media to publicize them.

Opinion 18-77 A part-time judge may maintain concurrent employment as the chief financial officer/treasurer for an airport authority, whose employment duties include oversight of accounting and financial affairs, information technology services, purchasing and procurement and do not involve fund-raising or law enforcement functions.

Opinion 18-52 May a part-time village justice who is also a full-time college professor teach a college course in a correctional facility in another county?

Opinion 18-11 May a part-time judge accept seasonal employment with a company owned by two deputy sheriffs who are employed in the same county, where these deputy sheriffs, and others subject to their supervision, are likely to issue tickets in matters which will be heard in the judge’s court.

Opinion 18-07 May a part-time town justice also serve as a county employee in the same county where he/she presides, either as (1) a senior network administrator for the county government’s information technology department or as (2) director of information technology for the county?

Opinion 17-173 A part-time judge may not supervise the emergency medical services division in the sheriff's office in the county where the judge presides.

Opinion 17-141 Although a part-time judge may accept 18-B assignments, he/she may not serve as administrator of the county's 18-B plan, even if a bar association initially reviews the 18-B vouchers for irregularities.

Opinion 17-136 May a part-time town justice accept paid employment as an advisor to a consulting firm which was retained by a municipality (other than the one in which he/she sits) to conduct a study on the feasibility of subsuming its village court into the larger town court?

Opinion 17-125 A part-time village justice may hold full-time employment as a training director with a city's independent emergency communications department, where he/she oversees training of an all-civilian staff and does not supervise dispatchers or perform dispatch duties.

Opinion 17-103 May a part-time City Court judge also serve as a full-time Executive Director of a not-for-profit alcohol treatment program, to which the judge indirectly makes referrals?

Opinion 17-102 May a part-time City Court judge also serve as a full-time Executive Director of a not-for-profit center for social and criminal justice?

Opinion 17-46 A part-time judge may also serve as head of a county agency responsible for enforcing a particular county law, where the agency is the licensing authority for an industry and has authority to commence civil administrative proceedings but (i) is unlikely to be involved directly or indirectly in any cases in the judge's court, (ii) has no authority to prosecute legal or criminal proceedings in any court, and (iii) has no police powers or functions.

Opinion 17-42 May a part-time judge also be a full-time academic SUNY employee administering and overseeing a SUNY-hosted police cadet academy?

Opinion 16-134 May a full-time court attorney-referee work part-time as a real estate agent?

Opinion 16-87 May a town justice serve as the workplace ombudsman for aggrieved town employees?

Opinion 16-83 May a part-time judge portray a judge in a commercial film?

Opinion 16-58 May a part-time judge conduct background investigations for the United States Office of Personnel Management?

Opinion 16-10 May a part-time judge place classified ads indicating his/her availability to officiate marriages?

Opinion 15-181 May a part-time judge maintain concurrent employment with a private company which provides risk and threat assessments to various entities? 

Opinion 15-158 May a non-judge who is currently employed as a peace officer in a community college resign his/her peace officer status and accept a new role as a campus security officer for the same institution, after becoming a part-time judge in a nearby municipality? 

Opinion 15-116 May a part-time town justice accept appointment as the town's tax collector?

Opinion 15-20 May a town justice accept concurrent employment as a County Emergency Medical Services Coordinator?

Opinion 14-177 A full-time judge may not accept employment as part-time treasurer of the board of directors of a special district library financed by the local municipality.

Opinion 14-176 May a part-time justice also be employed as Head Automotive Mechanic for the County Department of Public Works?

Opinion 14-142 May a judge serve as a hearing officer for the New York State Joint Commission on Public Ethics?

Opinion 14-98 Under the circumstances presented, a part-time lawyer judge may enter into an agreement with a private company to provide security and marketing services as a subcontractor, even though the private company has a separate contractual relationship with a not-for-profit organization whose counsel regularly appears before the judge.

Opinion 14-66 A part-time judge who is also a high-level employee of the county government: (1) may allocate funds annually to the probation department’s probation employment program, provided it does not result in the judge’s frequent disqualification; (2) must not personally participate in the solicitation of funds, but may manage other county employees who will engage in such solicitations on behalf of the county office or department for which the judge works; and (3) may meet with elected officials to advocate for maintenance of services to a particular category of individuals, subject to certain limitations.

Opinion 14-46 A full-time quasi-judicial official may serve as a coach for a local public school’s sports team and accept the reasonable compensation offered, subject to applicable reporting requirements.

Opinion 14-44 May a part-time town justice also maintain employment as an investigator for the county Department of Social Services?

Opinion 14-18 Is it ethically permissible for a part-time judge to be employed as a zoning code official in a town 30 miles away from the town in which the judge presides as town justice?

Opinion 13-165 A part-time judge, who is a member of a bank’s advisory board, may publicize the bank’s current promotion, in which customers who are referred by a member of the advisory board will receive $100, provided he/she does not identify him/herself as a judge or otherwise use his/her judicial title in connection with this commercial activity.

Opinion 13-130 A part-time judge may not maintain simultaneous employment as a pistol permit clerk in the local sheriff’s department.

Opinion 13-119 Is it ethically permissible for a non-lawyer/town justice to accept a full time civil service position with the county Department of Motor Vehicles?

Opinion 13-105  Is it ethically permissible for a judge to work as a bartender in a town that adjoins the town where the judge presides?

Opinion 13-93 May a part-time judge obtain a "Watch Guard Patrol License" and operate his/her own security agency?

Opinion 13-85 A part-time judge, retained as an expert witness, may include his/her judicial status in a curriculum vitae to be exchanged during discovery.

Opinion 13-66 A part-time judge may not conduct a management study for the police department that appears in the judge’s court.

Opinion 13-25 May a part-time judge accept employment as an Offender Rehabilitation Coordinator at a correctional facility?

Opinion 13-23 A part-time town justice may accept appointment to the compensated part-time position of historian for the same municipality in which he/she presides.

Opinion 13-14 May a part-time judge accept employment with a not-for-profit organization or a law firm to perform services that would include meeting with state and local governmental officials, providing the employer with legal and policy analysis of pending legislation, appearing at hearings before executive agencies and legislative bodies, advocating for and seeking the passage of legislation that advances the policies and interests of the not-for-profit organization or law firm clients, and performing trainings on policy, legislation, and laws to educate the constituencies of the not-for-profit or to promote the interest of the law firm’s clients?

Opinion 12-189 May a part-time judge be employed as an Indian Nation police officer?

Opinion 12-188 May a town/village justice continue to serve as treasurer and service provider for a not-for-profit organization that provides services to the municipality in which the judge presides, where the services involve feral and abandoned animals and the municipality compensates the organization on a per animal basis?

Opinion 12-175  An individual who is a part-time judge and has a co-judge may not also serve in the same court as a part-time court attorney.

Opinion 12-158 May a part-time judge serve as a County's Veterans' Counselor?

Opinion 12-138 A part-time judge who is knowledgeable about commercial truck driving, because of the judge's education, experience, employment, and credentials as a commercial truck driver and instructor, may accept employment as an expert witness on the subject of commercial truck driving in a Supreme Court case, provided that the party and/or attorney who retains the judge does not regularly appear before the judge. The judge must disqualify him/herself whenever the party or attorney appears in the judge's court, during the course of the employment and for two years after his/her services conclude and all fees are paid.

Opinion 12-110 May a part-time judge (1) be a restaurant owner and have their name on a liquor license?

Opinion 12-91 A part-time judge may, to the extent legally permitted, authorize his/her restaurant to promote sales by advertising that the restaurant will contribute part of its sales to a not-for-profit organization, provided that the judge's name and judicial office are not associated with the promotion.

Opinion 12-73 A part-time judge may serve as a school tax collector in the municipality where the judge presides.

Opinion 12-66 May a town justice serve as the elected Fire Commissioner of a Fire District for a hamlet within the town?

Opinion 12-30 A part-time judge may be employed as clerk to the county legislature and may, in that capacity, attend the year-end majority caucus solely to seek the nomination for reappointment as clerk for the following year.

Opinion 11-141 May a town justice also work for the Town Department of Public Works as a truck driver and laborer?

Opinion 11-102 May a part-time town justice work during the winter months as a safety/security manager at a ski resort?

Opinion 11-100 A part-time judge may be employed full-time as a news reporter, subject to certain limitations. As for subject matter, a reporter/judge may not cover cases pending or impending in the United States or its territories nor cover politically sponsored events.

Opinion 11-92 (1) A part-time town judge may perform administrative duties normally assigned to a court clerk and may be separately compensated for performing those duties, to the extent it is legally permissible for the part-time town judge to do so, and subject to the Rules Governing Judicial Conduct. (2) Whether a part-time town judge [in a court with one judge and two court clerks] may also be appointed to serve as a co-court clerk is a question of law that is beyond the Committee’s jurisdiction. [Note: Footnote 2 states: “If there were two judges in the inquirer’s court, this Committee’s prior Opinions would unquestionably preclude him/her from serving as their court clerk.” See also e.g. Opinions 17-5816-53.]

Opinion 10-200/11-74 A part-time town justice may not serve simultaneously as County Manager and Budget Officer for the county in which the judge presides, where the position oversees the budgets of all county departments, including the local district attorney and public defender whose attorneys will appear before the judge. Even if it is technically feasible for the County Manager and Budget Officer to insulate him/herself from those portions of the county’s integrated budget, such insulation would not be sufficient to overcome the appearance of impropriety and incompatibility.

Opinion 11-70 A part-time town judge may serve as curator of the town museum, as long as the position does not conflict or interfere with the proper performance of the judge’s duties, the judge does not personally participate in the solicitation of funds or other fund-raising activities, and the judge does not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

Opinion 11-59 A part-time judge may not simultaneously be the office manager for the county probation department that serves the same county where the judge’s court is located.

Opinion 11-11 A part-time non-lawyer judge may accept employment with a private security firm to work as a “security guard” at a warehouse located within the geographic jurisdiction of the judge’s court where the position would not confer peace officer status and the judge would have no authority to make arrests, provided that the judge disqualifies him/herself from any proceeding that involves the security firm or the warehouse and further provided that the position does not interfere with the proper performance of the judge’s judicial duties.

Opinion 10-163 A part-time judge who owns a small consulting company may provide consulting services to village officials in a neighboring county concerning establishing a village court.

Opinion 10-127 A part-time judge may accept employment as a process server, but may provide such services only in matters that will not be heard in his/her court, either before the inquiring judge or his/her co-judge.

Opinion 09-238 (1) A newly elected part-time town justice who is employed by the county health department may not continue to participate in Adolescent Tobacco Use Prevention Act (ATUPA) enforcement activities for the department after he/she takes office. 

Opinion 09-210/09-228 (1) A candidate for town justice may not continue his/her employment as a Magnetometer Screening Officer for a nearby city police department after taking office. (2) A part-time town or village justice may not accept a position with the Department of Homeland Security as a Transportation Security Officer.

Opinion 09-178 A town justice should not also serve as administrator of the county’s assigned counsel program or conflict defender’s office.

Opinion 09-131 A candidate for part-time judicial office who is employed as Deputy Executive Director and Director of Advocacy of a non-profit organization dedicated to the reform of the state court system, may continue to hold that position if his/her bid for election to judicial office is successful subject to the applicable limitations set forth in the Rules Governing Judicial Conduct.

Opinion 09-122 May a part-time judge ... (2) be employed as a STOP DWI Coordinator?

Opinion 09-101 A part-time town justice who owns an automotive towing service should not accept referrals for towing services from law enforcement agencies that appear in the justice's court, and should disqualify him/herself, subject to remittal, in proceedings arising from incidents where the judge's towing service was used.

Opinion 09-91 May a part-time judge serve as a hearing officer for the County Health Department?

Opinion 09-03 A part-time judge who is not a lawyer, but who represents landlords in court proceedings pursuant to a Power of Attorney and also advises and assists “clients” about eviction proceedings, is subject to the same restrictions applicable to lawyer judges, both when he/she appears before other lawyer judges presiding in other courts in the same county where he/she presides and when he/she sits as the presiding judge.

 

Ownership Interests or Active Participation in a Business; Investments; Ownership, Management or Rental of Real Property

When reviewing these digests and opinions, please note that Part 100 distinguishes between full-time and part-time judges with respect to most business activities. 

Opinion 22-11 May a new part-time judge continue to: (1) serve as a notary public after taking the bench; (2) maintain a real estate brokers license; (3) own real estate rental properties, whether individually or with their siblings, and either directly or as a member of an LLC; (4) own an ATM business together with another individual, where the business owns several ATMs placed in local businesses and the judge stocks the ATMs and receives income from the surcharges paid by the customer?

Opinion 21-154 A full-time judge (1) may hold shares in a family-held limited liability company that owns real estate, and participate in management of the company’s real estate investment, but (2) must not manage, operate, or otherwise actively participate in a family-held bar business that operates on the company’s real estate.

Opinion 21-73 A judge may not organize a virtual fashion show for judges which will (a) showcase the merchandise of a single producer of judicial robes or jewelry, (b) include a display by a single artist who creates and sells themed jewelry, or (c) display jewelry from judges’ personal collections accompanied by information about where the items were or can be purchased.

Opinion 21-22(B) (1) Where a full-time judge solely owns certain rental properties through a solely owned limited liability company, the judge: (a) may advertise those properties via social media or other lawful means, provided such advertisements do not mention the judge’s judicial status; (b) need not prohibit current tenants from forwarding or sharing such advertisements; (c) may, to the extent permitted by law, enter into a business arrangement providing a current tenant with a rent credit for referring new tenants, again assuming the judge’s judicial status will not be referenced; (d) is disqualified, subject to remittal, from presiding over matters involving current tenants; and (e) may not appoint or re-appoint current tenants to positions such as assigned counsel or attorney for the child. (2) If the judge’s relationship with an attorney tenant results in frequent disqualifications, the judge must either terminate the landlord/tenant relationship or divest the investment.

Opinion 20-214 A part-time judge who is an ordained minister, and who is legally permitted to solemnize marriages in that capacity, may establish a for-profit business to solemnize marriages as an ordained minister and advertise such business, provided there is no use, mention or connection to the judge's judicial status.

Opinion 20-208 Where a publicly traded company’s sole purpose is the sale of medicinal and recreational marijuana and other cannabis-related products, a judge may not invest in the company if it is operating in the United States in violation of federal law.

Opinion 20-187 May a full-time judge be a limited liability partner in a limited liability partnership which will apply to be a franchisee of a for-profit business, where the judge would only be a “passive investor” and “would not be involved in day-to-day operations or management of personnel” if the application is successful?

Opinion 20-155 May a full-time judge form a for-profit company to provide instruction and education on topics involving diversity, equity and inclusion?

Opinion 20-102 A full-time judge may obtain a patent and license it to another.

Opinion 20-85 A judge may write and post a book review online, provided it is not for the purpose of promoting the book’s sale. The judge must not authorize use of the review on the book jacket or elsewhere to promote sales of the book.

Opinion 19-62 A full-time judge may rent an apartment to a court officer who sometimes serves in his/her court.

Opinion 19-60 A full-time judge may be an officer of a company owned solely by his/her third-degree relative, where the company is engaged solely in the business of holding and managing certain intellectual property assets created by a deceased relative.

Opinion 19-09 A full-time judge may take a multi-week improvisational comedy class from a for-profit entity, but may not perform in the graduation show, which charges admission. Additionally, the judge may perform a first-person story about his/her childhood or cultural background only if the entity producing the event is a non-profit and the show is not a fund-raiser. The analysis does not change if the judge performs anonymously and/or uses a pseudonym.

Opinion 18-179 May a full-time judge continue to: 1) serve as an officer and manager of several LLCs that own commercial properties, where the judge and his/her sibling are the sole members of the LLCs; 2) pool monies from these family-owned LLCs to purchase and develop additional residential properties in another jurisdiction; 3) own a realty development corporation which is engaged in constructing a residential property in another jurisdiction; and 4) rent a commercial property in another jurisdiction to a variety of tenants, including attorneys?

Opinion 18-169 A full-time judge may not be a founder of, or serve as an officer in, a business entity that will broker sales of state-licensed marijuana dispensaries in another state. The judge may, however, be a minority shareholder in the company, provided he/she is a purely passive investor with no other role.

Opinion 17-156 What steps should a full-time judge take on realizing that his/her membership in a for-profit investment club with non-relatives is not permissible?

Opinion 17-63 May a part-time judge form a company to manufacture and sell custom-made robes to other judges online?

Opinion 17-52 May a full-time judge hold a small percentage ownership in a limited liability company his/her spouse is forming to provide consulting services in his/her field, where the judge will not have any active role in the management or control of the business?

Opinion 16-80 May a full-time judge hold ownership interests in a limited liability company that owns income-producing property, along with the judge's spouse? Does it matter whether the judge holds such interests in an individual capacity or as a trustee of a beneficial trust for a family member?

Opinion 14-89 A judge may form a general partnership with his/her first cousins that will operate as an investment club, where the club will invest solely the financial resources of the judge and his/her cousins.

Opinion 14-71 Is it ethically permissible for a part-time judge to lease certain real property the judge owns to a business entity, where the entity's proposed use of the judge’s property will require obtaining certain approvals from the municipality where the property is located and could also lead to public hearings concerning the proposal?

Opinion 13-167 A part-time lawyer judge may refer potential clients to his/her tenant, who is also an attorney, subject to certain limitations.

Opinion 13-84 A full-time judge may be a shareholder in a closely held consulting business owned by the judge’s non-attorney spouse, and may also be included in a family photograph that will be posted on the website or other advertisements for that business, provided that no reference is made to the judge’s judicial title or position and the judge does not appear in a judicial robe or setting.

Opinion 10-203(B) ... (2) A judge may be a member with his/her siblings of an LLC that will own several pieces of real estate.

Opinion 10-193 (1) A full-time judge may not take an active role in the management or operation of any real property that he/she co-owns as a tenant-in-common with a person who is not a member of his/her family and may not appear in court on matters relating to such property to the extent that he/she would be representing not only his/her own interest, but also that of his/her tenant-in-common. (2) A full-time judge may manage real estate as the sole member of the limited liability corporation that owns the property. To the extent legally permitted, the judge may appear pro se on behalf of the limited liability corporation unless the corporation is required by law to appear by or through counsel.

Opinion 10-77 A judge may serve as an officer of family corporations that invest in real estate.

Opinion 10-37 A town justice who owns shares in a corporation that leases office space to the same town in which the judge presides must disqualify him/herself when the town appears in the judge’s court or, if the need for disqualification is frequent, must divest him/herself of the ownership interest in the corporation.

Opinion 09-89 A judge may open a court bank account in a bank for which his/her private law firm serves as legal counsel, in which he/she is a stockholder, from which he/she has an outstanding loan and in which he/she maintains three accounts, assuming that the court funds deposited in the bank will not substantially affect the value of the judge's interests in the bank and as long as using the bank ensures the judge's own safety and security and the safety of the public funds entrusted to the judge's care.

Opinion 09-85 ... A full-time judge may not be a director of any business entity except one engaged solely in investment of the judge’s or his/her family members’ financial resources.

 

Gifts; Application for Scholarship, Fellowship, or the Like; Free Admission to Events

Opinion 22-07 A new full-time judge (3) may give another judge an artwork created by a former client.

Opinion 21-166 Although a full-time judge may serve on the board of trustees of a not-for-profit private school, the judge ... (3) may not negotiate a discounted fee with an attorney or law firm for legal services to the school.

Opinion 21-150 A judge may accept a law firm’s offer of pro bono representation for the purpose of filing a lawsuit to challenge the Unified Court System’s vaccine mandates, where the law firm has not come and is not likely to come before the judge, subject to a reporting requirement if the value of the waived legal fees exceeds $150. The judge, however, may not disseminate a blanket email to all judges asking if any are interested in joining the proposed lawsuit.

Opinion 21-95 May a judge attend, as a guest of the judge’s prosecutor spouse, the purely social aspects of a multi-day annual prosecutors’ conference, located in another part of the state?

Opinion 21-51 A full-time judge may accept a grant from a not-for-profit arts services organization and use it, to the extent legally permissible, to rent space for and/or provide honoraria to poets, in order to provide free poetry readings to the community.

Opinion 21-35 A judge may attend a sporting event or concert in a luxury box as a guest of the judge’s spouse, where use of the luxury box seats is a benefit incident to the spouse’s employment as officer of a company that is unlikely to come before the judge, and could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

Opinion 20-202 After receiving any administrative approvals that may be required, judges may collaborate with the Historical Society of the New York Courts on a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.

Opinion 19-127 (1) A part-time judge may attend out-of-state judicial education courses at the National Judicial College. (2) The judge may apply for and accept an educational grant or scholarship from: (a) the National Judicial College or (b) a County Traffic Safety Board, provided there is no financial or referral connection between the judge and the Board, and there is little likelihood that the Board's investigations and recommendations will become the subject matter of cases before the judge. (3) The judge may not request or accept funds for judicial education from a local Victim Impact Panel, where that organization's sole funding source is fees paid by defendants for attendance at court-ordered sessions.

Opinion 18-133 A judge may accept a prize resulting from his/her purchase of a winning raffle ticket at a charity event.

Opinion 18-124 A town justice, on behalf of the justice court, may accept a testamentary bequest so-ordered by the surrogate’s court to hold a holiday party at the courthouse. The court may invite lawyers to attend the party by posting notices with the bar association and/or at the courthouse.

Opinion 18-64 May a judge attend his/her former law firm’s lavish private anniversary dinner for current and former employees, where the firm and its lawyers do not appear before the judge?

Opinion 18-65 Where a town justice’s caseload includes a variety of cases involving the casino in his/her town, the judge (1) may accept routine perks such as “free play and food comps” from the local casino, provided the judge knows such perks are offered to all similarly situated patrons and the casino is not presently an active participant in a hearing or trial before the judge; but (2) must not accept the local casino’s invitation to attend lavish, expensive, or exclusive events.

Opinion 17-106 May a quasi-judicial official, whose young child has significant developmental and physical limitations, seek financial help and services offered by not-for-profit organizations for the benefit of such children and their families?

Opinion 17-87 May a full-time judge accept an anonymous gift of food, very modest in value, which was left in his/her chambers?

Opinion 17-80 May a judicial association accept a donation of food from a local restaurant for an upcoming cultural celebration open to the public?

Opinion 17-24 A full-time judge who presides in a high-volume part may hold annual or semi-annual meetings with the attorneys who appear before him/her to discuss administrative issues. These meetings may not involve catered meals paid for by attorneys, but the judge may host "brown bag luncheons" to which the participants may bring their own meals.

Opinion 16-176 A full-time judge may not accept a collectible music album from a press photographer who regularly covers cases in the inquiring judge's courtroom.

Opinion 16-02 A judge may not partner with, or commit the court to partner with, entities applying for a grant to create a domestic violence advocacy program. Nor may the judge or the court participate in the ongoing administration of the resulting advocacy program.

Opinion 15-122 May a judge accept the gift of a food platter from a former judge who has resumed the practice of law and is now practicing in the judge's court?

Opinion 15-90 May a judge accept an invitation to attend a bar association's annual dinner as the guest of a law firm, where the cost of the dinner is approximately $500?

Opinion 15-81 May a judge accept a bar association's gift of complimentary admission to an upcoming law-related conference for the judge and a guest, along with food and lodging expenses, where the total value of the gift is approximately $1500?

Opinion 15-72 May a full-time judge attend a dispute mediation service's volunteer recognition dinner?

Opinion 15-57 May a judge accept an invitation to attend and participate in an out-of-state conference on women and justice that is co-sponsored by a law school, a limited liability company, and a law firm? If so, may the judge accept the law school's offer to pay for the judge's accommodations?

Opinion 15-12 May a judge accept free tickets and parking vouchers for a game of his/her choice from a local sports team that has not recently appeared before the judge and is not likely to do so?

Opinion 14-74 A full-time judge may accept free admission to a continuing legal education seminar offered by a private legal training organization that is owned and/or operated by an attorney who has not appeared, and is not likely to appear, in the judge’s court, subject to a reporting requirement if the value of the gift exceeds $150. In the event that the attorney later appears in the judge’s court, the judge’s obligation is to disclose the gift for a reasonable period of time following the seminar, and the length of such period of time is left entirely to the judge’s discretion after consideration of all relevant factors.

Opinion 14-69 It is ethically permissible for a judge to suggest that his/her wedding guests consider contributing to a charity of the guests’ choice in lieu of giving a wedding gift where the judge also asks the guests to omit any reference to his/her judicial title when sending the donation.

Opinion 13-151 Under the circumstances presented, the Rules Governing Judicial Conduct do not prohibit a court attorney-referee from accepting a gift from long-time former clients who live overseas and have divested themselves of their New York real estate holdings and with whom the court attorney-referee established a warm personal rapport during their prior professional relationship.

Opinion 13-142 A judge who presides in a collaborative problem-solving court may, on behalf of his/her court, accept an award and associated monetary grant to the court from a not-for-profit organization at a non-fund-raising event and may make appropriate remarks to express appreciation for the award.

Opinion 12-185 A judge may accept an invitation to be the dinner guest of attorneys who have regularly appeared in the judge's court, if the dinner qualifies as ordinary social hospitality.

Opinion 12-177 A newly elected full-time judge may continue to participate in a variety of extra-judicial activities subject to the limitations set forth in the Rules Governing Judicial Conduct and may accept gifts of a gavel or judicial robe from members of his/her family.

Opinion 12-106 A trial judge may invite other trial judges, who are not subject to his/her supervision, to make voluntary donations to a relief fund set up for a judicial colleague who suffered devastating losses to his/her home and personal possessions. The funds may then be given as a gift to the receiving judge, subject to any applicable reporting requirements.

Opinion 12-90 May a judge attend the wedding of a former colleague who regularly appears before them in court as an attorney?  What will the judge's ethical obligations be in matters involving the attorney if the judge attends the wedding and gives a gift?

Opinion 12-22 A part-time judge ... (5) may accept a grant or fellowship for any permissible purpose, provided that the grant or fellowship is awarded on the same terms and criteria applied to other applicants.

Opinion 11-28 May a judge apply to a local charitable foundation for a grant or accept the offer of a local attorney to “explore steps to raise ... money” for the purpose of preserving and displaying historical photographs in the courthouse?

Opinion 11-24 Under the circumstances presented, a judge may accept a gift of the admission fee for a road race from his/her sibling’s spouse.

Opinion 10-46 May a judge accept an invitation to be a fellow in residence at an undergraduate dormitory of the judge's college alma mater?

Opinion 09-209 A board of judges may accept gift certificates awarded pursuant to a restaurant promotion as long as no member judge has presided or is likely to be presiding over a matter in which the restaurant was or is a party and may award them as prizes to member judges for participating in a sporting event held during the board’s annual retreat. A judge who accepts a certificate as a prize from the board must follow the applicable reporting requirements.

Opinion 09-186 A full-time judge may apply to and, if accepted, reside for one month in an artist colony that offers free room and board to all participants.

Opinion 09-74 A judge may accompany his/her spouse, who is an elected law enforcement official, to a conference in a foreign country for law enforcement leaders world wide, where the conference subject matter is sufficiently broad and the inquiring judge’s attendance is due only to his/her spousal relationship. The judge may accept payment of his/her travel and other conference expenses from the conference host, but must comply with any applicable reporting requirements.

Opinion 09-66 May a judge attend a judicial reception of a local bar association as a complimentary guest, even though others attending must pay and the event is underwritten by one or more entities?

 

Miscellaneous Business or Financial Activities; Giving Gifts

Opinion 22-07 A new full-time judge (3) may give another judge an artwork created by a former client.

Opinion 20-158 An appellate division justice who learns that a law firm’s website features screen shots and video of the court’s oral arguments, in which the court’s justices are visible and readily identifiable, must ask the law firm to remove them. The court may, in its discretion, post a notice on its own website advising that images and videos of the court’s justices shown on the court’s website or otherwise may not be used to advance private interests or in furtherance of any commercial purpose. The court and its justices need not monitor lawyer websites but upon learning of any such misuse in the future, a justice should object and request that the offending images be removed.

Opinion 18-133 A judge may accept a prize resulting from his/her purchase of a winning raffle ticket at a charity event.

Opinion 17-156 What steps should a full-time judge take on realizing that his/her membership in a for-profit investment club is not permissible?

back to top

 

Dual Employment within the Judiciary

(See also "Conflicts - Court Personnel's Concurrent Employment as Part-time Judge")

Opinion 22-53 May a town court clerk also serve as town justice in the same two-judge, two-clerk town court?

Opinion 22-09 A part-time judge may also serve as a deputy district executive in the same judicial district, subject to applicable administrative approvals.

Opinion 20-164 Whether or not a judge may hold two part-time judicial positions in the same municipal court is a legal question beyond this Committee’s jurisdiction. If it is determined that the dual service described is legally permissible, such serving would not otherwise violate any ethics rules or principles under Part 100. If there is a legal impediment to such service, the judge may not so serve.

Opinion 19-71 A town justice who also serves as principal court attorney in superior court for a designated youth part judge: (1) may arraign adolescent offenders in the county's centralized arraignment part; (2) must be insulated as a court attorney from (a) cases he/she arraigned in the centralized arraignment part and (b) all cases originating in or appealed from the town court; but (3) need not otherwise be insulated as a court attorney from adolescent offender cases merely because they were arraigned in the centralized arraignment part

Opinion 19-16 A part-time justice who also serves as full-time secretary to a superior court judge is disqualified in cases involving the superior court judge’s spouse’s law firm.

Opinion 19-12 A town justice who also serves as a superior court law clerk must be insulated as a law clerk from all matters originating in the town court, and the insulation is not subject to waiver or remittal.

Opinion 19-05 A town justice who serves as a court attorney to a multi-bench county court judge: (1) must be insulated in the superior court from (a) all matters originating in the town court in which he/she presides and (b) every matter that touches on an incident over which the court attorney presided as a town justice, even if it was a completely separate case; (2) may preside in a town court criminal case involving a defendant who is also appearing before the superior court judge, even if the town court case may be resolved by a guilty plea in the superior court, provided the justice is insulated from the superior court criminal case; and (3) may not preside in a town court case involving a party who previously appeared before him/her as a court attorney in superior court for a pretrial conference of a family court matter.

Opinion 18-162 May a town justice serve concurrently as a JHO?

Opinion 18-184 A part-time judge who is also a law clerk to a full-time judge in a criminal part may not avoid insulation as a law clerk in matters originating in his/her court by allowing his/her co-judges to assume responsibility for all felony arraignments, felony hearings and other felony-related criminal proceedings in that court.

Opinion 18-23/18-56 (1) A County Court judge whose full-time court attorney is also a town justice within the same county must insulate the court attorney from every matter that touches on an incident over which the court attorney presided as a town court justice, even if it was a completely separate case. The insulation must also be disclosed on the record to all parties and their counsel, and, since disclosure is mandated here in lieu of outright disqualification, the County Court judge must recuse if any party appears without counsel. (2) A town justice who is a full-time law clerk to a superior court judge may preside over criminal matters returned to the originating court, provided he/she was insulated from such matters as a law clerk. NOTE: Modified by Opinion 21-22(A), which abolishes the "pro se remittal" rule.

Opinion 17-184 May a support magistrate also serve as a part-time town justice?

Opinion 17-171 May a part-time town or village justice serve as law clerk to a Supreme Court Justice?

 

Practice of Law

(22 NYCRR 100.6[B]; 100.4[G]; NY Const art VI, 20[b][4].)

Sub-Topics: Part-Time Judges and JHOs | Full-Time Judges; Acting Pro Se or Advising Relatives; Winding Down One's Law Practice

Part-Time Judges and JHOs

(22 NYCRR 100.6[B][2]-[5]; 122.10; Judiciary Law §§16-17, 471.)

This section collects recent opinions concerning the practice of law by part-time attorney judges, including practice limitations on part-time judges and their partners or associates; determining whether a part-time judge's tenant should be treated as an "associate"; compatibility of employment as a government attorney; and advertising the judge's law practice. 

Opinion 22-66 When appearing before a full-time judge on behalf of a client, a part-time lawyer judge should not make an unnecessary, voluntary disclosure that they once presided in a criminal case involving the full-time judge's administrative secretary.

Opinion 22-35 A part-time judge may not serve as an assistant attorney general handling petitions for civil management of recidivist sex offenders under the Sex Offender Management and Treatment Act.

Opinion 22-12 A new town judge, who can no longer represent an existing client on a nearly completed matter that originated in the town court, may agree to pay the successor attorney a portion of the original retainer.

Opinion 21-178 A town justice may not simultaneously serve as the director of a non-profit civil legal services agency where the judge’s responsibilities include overseeing attorneys and advocates who are likely to appear in the judge’s court in summary eviction proceedings.

Opinion 21-148 May a part-time city judge simultaneously serve as an assistant county attorney handling child welfare matters?

Opinion 21-143 A part-time attorney judge may not represent a police benevolent association, whether in a non-adjoining town in the same county or in a village in another county, as an appearance of impropriety would be created, based on a perception that the judge is too closely aligned with law enforcement interests.

Opinion 21-133 Where a part-time lawyer judge is representing a client on a litigated matter, may the judge respond to media requests for information and comment on that matter?

Opinion 21-132 (1) A part-time lawyer judge who was assigned as a special prosecutor before assuming the bench, and did not seek to withdraw or be relieved as special prosecutor on assuming the bench, may request and accept permissible legal fees and disbursements for prosecutorial work performed before assuming the bench, but may not accept compensation for prosecutorial work performed after assuming the bench. The judge must take reasonable steps to amend or supplement any previously submitted vouchers as needed and to return any compensation already received for prosecutorial work erroneously performed after assuming judicial office. (2) A part-time lawyer judge may not ordinarily appear before another part-time lawyer judge in the same county, but may do so if that judge is a full-time employee of the Unified Court System and presides in a different court. (3) Where all judges of a court in the same county are part-time lawyer judges, a practicing part-time lawyer judge may not represent a client before any judge of that court and may not ask for a non-attorney judge outside of that court to be assigned to the case. (4) A part-time lawyer judge must prohibit their partners and associates from appearing in the judge’s own court, but need not prohibit their partners and associates from appearing before the part-time lawyer judges of other courts in the same county.

Opinion 21-110 Where proceedings involving the town, its highway department, or the highway department's employees are very rare in the town court, a town justice may represent the town in collective bargaining negotiations with the union representing the town's highway department personnel. However, the judge must disqualify in all matters where the town is a party both for the duration of the representation and for two years after it completely ends.

Opinion 21-100 The Rules Governing Judicial Conduct do not preclude two part-time lawyer judges who preside in the same court from representing two potentially adverse parties in a proceeding before a full-time judge in another court.

Opinion 21-94 May a part-time attorney judge serve as a part-time prosecutor in a neighboring county?

Opinion 21-88 May a part-time attorney judge ... (2) represent [a not-for-profit civic or charitable] organization pro bono?

Opinion 21-77 May a village justice also serve as Assigned Counsel Administrator in the same county?

Opinion 21-63 Where a town justice serves as village attorney for a village which is wholly encompassed within the town where the justice presides, and the village retains a completely independent special prosecutor to handle all village court matters, the vast majority of which involve parking violations, the town justice may continue to serve as village attorney after the village court is abolished. However, the town justice may not preside in cases where the village is a party; if this results in frequent disqualifications, the justice must choose between the positions of town justice and village attorney.

Opinion 21-60 A part-time lawyer judge may serve as an assistant public defender in another county, but must not preside in any matter where another attorney from the same public defender’s office appears.

Opinion 21-33 May a new part-time judge request that the county court judge transfer all of their cases, which were pending in the court to which they were recently appointed as a part-time judge, to different jurisdictions?

Opinion 21-01 A town justice, who serves as village attorney for a village which is wholly encompassed within the town where the justice presides, may not continue as town justice and village attorney where the town court would be expected to hear all cases arising out of the village, including actions to enforce village zoning, parking and other local laws. The justice may not recuse from all village cases in order to retain both positions.

Opinion 20-172 A part-time attorney judge (1) may accept an 18-B assignment to appear before a full-time judge if the assignment does not involve an ethical or legal conflict but (2) may not represent a parent in a custody proceeding where recent or pending criminal proceeding(s) in the judge’s court brought by the other parent could affect a disposition in the custody proceeding.

Opinion 20-123 A town justice may also work as a legal assistant at the appeals and opinions bureau of the attorney general’s office.

Opinion 20-110 (1) A part-time lawyer judge may serve as co-counsel on a matter with a private attorney who is a non-supervisory assistant conflict defender in the same county. (2) The judge may continue to preside in unrelated cases involving other attorneys from the conflict defender’s office, provided he/she can be fair and impartial, and disclosure is not required. (3) While the judge and attorney are serving as co-counsel on this case, and for two years after it completely terminates, the judge may not preside in matters involving the attorney unless he/she fully discloses the co-counsel relationship on the record. If any party is appearing without counsel, or if the judge doubts his/her own impartiality, the judge must simply disqualify him/herself. NOTE: Modified by Opinion 21-22(A), which abolishes the "pro se remittal" rule.

Opinion 20-64 May a part-time lawyer judge (1) practice law before a non-lawyer judge in another town or village of the same county; (2) practice law in County Court or Supreme Court; ... or (4) accept full-time employment as chief clerk of the County Court?

Opinion 20-48 May a part-time lawyer judge handle criminal and traffic defense matters as an attorney in the same county, given that the prosecutors in those cases may also appear in his/her court?

Opinion 20-28 A part-time lawyer judge may not serve as part-time assistant counsel for the Division of Criminal Justice Services.

Opinion 20-12 When a part-time city court judge appears before a full-time judge as an attorney on behalf of a client, the Rules Governing Judicial Conduct do not prohibit him/her from asking the court to direct a city marshal, rather than the county sheriff, to execute a warrant of eviction.

Opinion 19-160 A town justice may also work as a part-time, nonsupervisory assistant county attorney in the same county, provided he/she has no prosecutorial or quasi-prosecutorial duties and is fully insulated from all matters involving the district attorney’s office and the sheriff’s office.

Opinion 19-154 A judge who has a remittable conflict with the entire public defender’s office and whose first-degree relative and law partner are also assistant public defenders in that office: (1) may arraign indigent defendants from other local courts in the centralized arraignment part, provided they are represented by the conflict defender or assigned counsel at arraignment and the public defender’s office has not previously represented them in the matter; (2) is disqualified in cases transferred from the centralized arraignment part where the public defender’s office represented the defendant, but the disqualification is subject to remittal after full disclosure on the record unless the judge’s first-degree relative or law partner handled the arraignment; and (3) is disqualified from arraigning a defendant on a bench warrant issued by another local judge if the public defender’s office represents the defendant in the underlying matter, but the disqualification is subject to remittal after full disclosure on the record unless the judge’s first-degree relative or law partner is involved in the underlying matter.

Opinion 19-133 (1) A part-time attorney judge who is opposing a motion to remove him/her as an attorney in a pending case may respond to media questions concerning the motion in his/her capacity as an attorney, provided he/she makes no reference to his/her status as a judge. (2) If the judge believes governing law prohibits him/her from providing certain details concerning the litigation, he/she may say so publicly.

Opinion 19-114 A part-time town justice may represent the town and a village contained within the town in federal court. However, he/she is then disqualified in matters where either client is a party. While the disqualification is subject to remittal, if the representation results in excessive disqualifications, the judge must choose between the two positions.

Opinion 19-56 A part-time judge may serve as a Department of Social Services attorney in the same county and handle neglect proceedings in Family Court. However, if the DSS role requires numerous recusals as judge, or becomes involved in prosecuting JD or PINS cases, then the judge must choose between the positions.

Opinion 19-40 A part-time lawyer judge may concurrently serve as in-house counsel to the state’s education department, where he/she will research and draft opinions for the education commissioner in response to appeals from local school board decisions and licensing determinations.

Opinion 19-06 Whether a part-time town justice, who is also a US Air Force Reservist, may continue in office as judge while on extended military orders outside New York raises legal questions the Committee cannot address.

Opinion 19-02 May a part-time town justice serve as attorney of record to other villages and towns inside and outside his/her county, and appear on their behalf in Supreme Court such as Article 78 proceedings, FOIL matters, and civil trespass?

Opinion 18-163 A part-time lawyer judge may provide legal services to a New York State-approved medical marijuana corporation.

Opinion 18-153 A part-time lawyer judge may not represent a private client before the board of assessment review in the same town where the judge presides, but the judge’s partners or associates may undertake the representation provided there is no other ethical impediment and the judge neither participates in the representation nor shares in the fee.

Opinion 18-137 A part-time judge may represent a judge who presides in a different court before the Commission on Judicial Conduct.

Opinion 18-130 If the criteria of 22 NYCRR 36.1(b)(2)(I) are met, a full-time judge may allow a part-time judge to serve as a court-appointed guardian, and the part-time judge may so serve.

Opinion 18-129 A part-time lawyer judge who serves as an accessible magistrate must not accept appointment as attorney for the child in a case where he/she previously served as the arraigning judge but is not otherwise ethically barred from accepting appointments as attorney for the child in cases that originate in the youth part.

Opinion 18-81 A part-time town justice may not accept a part-time counsel position in which he/she would be responsible for improving the delivery of legal services to indigent clients in the judge’s county and would report to the administrator of the county’s assigned counsel program.

Opinion 18-50 A part-time judge may not simultaneously serve as an assistant county attorney, where his/her specific responsibilities involve representation of the district attorney’s office, the public defender’s office and the sheriff’s department, all of whom regularly appear in the judge’s court.

Opinion 17-183 May a part-time judge also serve as a full-time deputy county attorney in Family Court, handling juvenile delinquency matters pursuant to article 3 of the Family Court Act?

Opinion 17-180 Must a town justice whose law practice has absolutely no affiliation with the law practice of his/her first-degree relative (parent or child) prohibit the relative from appearing before other judges in the same court?

Opinion 17-172 May a part-time town or village justice serve as the County Attorney or an Assistant County Attorney within the same county where he/she presides?

Opinion 17-141 Although a part-time judge may accept 18-B assignments, he/she may not serve as administrator of the county's 18-B plan, even if a bar association initially reviews the 18-B vouchers for irregularities.

Opinion 17-62 May a part-time judge accept employment as counsel to the county legislature?

Opinion 17-46 A part-time judge may also serve as head of a county agency responsible for enforcing a particular county law, where the agency is the licensing authority for an industry and has authority to commence civil administrative proceedings but (i) is unlikely to be involved directly or indirectly in any cases in the judge's court, (ii) has no authority to prosecute legal or criminal proceedings in any court, and (iii) has no police powers or functions.

Opinion 17-45 May a town justice continue to serve as County Attorney in the same county where he/she presides?

Opinion 17-36 May a town justice serve as the town attorney for another town in the same county, where there will be no prosecutorial component to that town attorney position?

Opinion 17-02 May a part-time city court judge serve as a part-time attorney with legal aid in another county? What restrictions apply?

Opinion 16-167 May a town justice simultaneously serve as a federal prosecutor?

Opinion 16-143 (1) Where a part-time lawyer judge's law practice associate is representing a client in another court in the same county before another part-time lawyer judge, the judge may not personally participate in the representation by meeting with the client or discussing the case with opposing counsel, even if such activities will take place away from the courthouse. (2) The judge may nonetheless directly supervise a subordinate attorney who is representing the law practice's clients in such matters, provided such supervision takes place in private, without involvement of the client, opposing parties or counsel, or the court in which the matter is heard.

Opinion 16-137 May a part-time judge accept employment as a salaried conflict defender in the county where the judge presides? If so, may the judge appear as a conflict defender before other part-time judges in the same county who are permitted to practice law?

Opinion 16-119 May a JHO represent clients on real estate transactions and matters in Surrogate's Court in the same county where he/she serves as a JHO? When are such matters deemed "contested" under 22 NYCRR 122.10(c)? May the JHO's law firm colleagues assume the representation on contested matters once the JHO withdraws from the representation?

Opinion 16-72 Where a part-time justice serves as counsel to an association of local government officials and employees, may he/she advise individual members concerning local justice court operational issues?

Opinion 16-63 May a part-time attorney judge's attorney tenant appear before other co-judges of the judge's court, where the judge and the tenant (a) share a fax machine and fax number which is included in their respective stationery, (b) occasionally cover court appearances for each other, and/or (c) permit the judge's receptionist to answer phone calls for the tenant?

Opinion 16-32 May a part-time judge who presides over arraignments and other criminal cases serve as part-time in-house counsel for the local sheriff's office?

Opinion 16-13 May a newly appointed part-time judge continue to represent a client on cases which not only originated in the judge's court, but were previously handled by the inquiring judge's predecessor on that court, and were transferred to another local court only after the inquiring judge assumed the bench?

Opinion 15-205 May a part-time judge serve as Corporation Counsel?

Opinion 15-194 On becoming a part-time village justice, may an attorney continue to practice law as a solo practitioner in the same county where he/she will preside?

Opinion 15-142 May a part-time town judge, who is also executor of an estate that owns real property within the town, retain counsel and petition the town for approval of the beneficiaries' requested subdivision of the property? If so, may the judge thereafter preside when assistant town attorneys appear before the court?

Opinion 15-68 May a judicial hearing officer participate in a bar association's pro bono help desk at a court from which he/she accepts judicial hearing officer assignments?

Opinion 15-09 May a part-time City Court judge concurrently serve in the non-supervisory position of full-time deputy county attorney?

Opinion 14-195 Whether a part-time judge may continue to practice law, while he/she is serving temporarily as a full-time judge pursuant to Uniform City Court Act §2104(e)(2), depends on whether the judge is legally a full-time judge during that period. It thus presents a legal question beyond the jurisdiction of the Advisory Committee on Judicial Ethics.

Opinion 14-179 Is it ethically permissible for a part-time judge to accept employment as counsel with a local labor union while continuing to preside as a part-time judge?

Opinion 14-158 May a judge who is permitted to practice law include the designation "Hon." preceding his/her name in the heading of his/her attorney profile on his/her law firm's website, or otherwise display his/her judicial title in the firm's list of attorneys?

Opinion 14-136 A part-time judge may not accept employment as a staff attorney with Legal Aid in the same county where the judge presides, where the proposed employment would unduly disrupt court operations.

Opinion 14-129(B) A judicial hearing officer (JHO), designated to the JHO panel for certain courts, may nonetheless prepare and argue appeals from decisions in those courts, subject to the limitations of Part 122.

Opinion 14-82 A part-time judge may join a law firm, even though two of the judge’s prospective partners or associates also practice law part-time with a second law firm that provides indigent defense services in the same county where the judge presides, provided the attorneys (a) will not practice law in the judge’s court and (b) will not share fees earned for their indigent defense work with the judge’s prospective law firm.

Opinion 14-80 A part-time lawyer/judge may not assist a long-time client and family friend with a case pending before another part-time lawyer/judge in the same county.

Opinion 14-57 May a part-time lawyer judge ask the clerk of a village justice court to assign all cases in which the judge represents a client to the non-lawyer acting village justice?

Opinion 14-53 An attorney who is a part-time town judge may practice law as partner of an attorney who is a part-time village prosecutor, subject to certain limitations.

Opinion 14-28 A part-time judge may serve as counsel to a nearby town and, in such capacity, provide legal advice to the town board, attend town board meetings, and defend the town in tax certiorari proceedings brought in Supreme Court.

Opinion 13-180 May a part-time town justice serve as town attorney in a different town from the one in which the judge presides?

Opinion 13-167 A part-time lawyer judge may refer potential clients to his/her tenant, who is also an attorney, subject to certain limitations.

Opinion 13-112 What are a part-time judge’s ethical obligations with respect to his/her co-judge practicing law in the village court where the judge also presides?

Opinion 13-98 Under the circumstances presented, a part-time judge may accept paid employment as an assistant staff counsel to the Minority Conference of a county legislature, provided that (1) his/her actions are clearly identifiable as those of an attorney representing a client and not as partisan political activity; (2) he/she interacts directly with Minority Counsel in the performance of his/her duties, rather than with individual legislators or their constituents; and (3) he/she does not attend legislative sessions or Minority Caucuses or other political gatherings.

Opinion 13-76 May a town justice include his/her judicial status: (a) in his/her law firm's advertisements; (b) in the biography he/she provides when speaking to or participating in bar association meetings; or (c) in the biography he/she provides when speaking to or participating in other groups, not related to the practice of law?

Opinion 13-58 May a part-time lawyer town justice appear as counsel in a city court which is located in the same county as the town court over which he/she presides, when he/she has accepted temporary assignments to sit in the same city court?

Opinion 13-14 May a part-time judge accept employment with a not-for-profit organization or a law firm to perform services that would include meeting with state and local governmental officials, providing the employer with legal and policy analysis of pending legislation, appearing at hearings before executive agencies and legislative bodies, advocating for and seeking the passage of legislation that advances the policies and interests of the not-for-profit organization or law firm clients, and performing trainings on policy, legislation, and laws to educate the constituencies of the not-for-profit or to promote the interest of the law firm’s clients?

Opinion 13-11 A part-time judge may permit his/her name and likeness to be used in advertising his/her law practice, provided there is no reference to the judge’s judicial status. The judge may not indirectly disclose his/her judicial status in such advertisements by stating that the law firm does not undertake representations in the judge’s court.

Opinion 13-09/13-52 ... (2) A part-time lawyer/judge who is acting on behalf of a client (a) may respond to media inquiries concerning issues addressed in an amicus brief that the lawyer/judge submitted on behalf of the client and (b) may attend military proceedings as a non-governmental observer on behalf of his/her client and prepare reports for his/her client, solely in his/her capacity as a lawyer representing a client, provided that the judge does not refer to or use his/her judicial status. 

Opinion 13-02 Where a part-time judge’s former client has filed a criminal complaint in the judge’s court relating to an alleged violation of an order issued by another court, the judge may not represent his/her former client in the other court, as the representation involves the same parties and the same or related facts as the pending criminal matter.

Opinion 12-183 A part-time lawyer/judge in a town, village, or city court may accept assignments from a full-time county court judge to represent prison inmates in their initial administrative appeals before the parole board.

Opinion 12-182 A part-time judge presiding in a municipality may not consent to his/her law firm's proposed representation of claimants in an Article 78 proceeding against the municipality, where the outcome of the proceeding would directly affect the municipality's court facilities, particularly if the judge would share equally in the earned legal fee.

Opinion 12-173 (1) A judge's law firm may not represent a client in a criminal case that originated in the judge's court, even if the matter is transferred to the Integrated Domestic Violence court. (2) A judge's law firm may not continue to represent a client in Family Court cases that are intertwined with a criminal case that originated in the judge's court, once all the intertwined cases are transferred to the Integrated Domestic Violence Court. (3) Although a judge's associates may not appear before any judge of the judge's court, they are not barred from practicing in other courts and thus may appear before part-time judges in other courts who are permitted to practice law.

Opinion 12-171 May a part-time attorney judge request the transfer of a client's case to another court in order to avoid the prohibition set forth in 22 NYCRR 100.6(B)(2)?

Opinion 12-134 May a judge continue to serve as town justice if the town retains the judge's firm to represent the town in a state or federal court action?

Opinion 12-92 Under the circumstances presented, a part-time attorney-judge may represent the board of directors of a large homeowners' association which is located within the geographic jurisdiction of the judge's court. The judge is disqualified, subject to remittal, when individual board members or the association itself appear before the judge, but not when individual homeowners or community residents appear before the judge.

Opinion 12-77 May a town justice serve as assigned counsel for the county court in the same county in which they preside?

Opinion 11-150 A part-time judge who is permitted to practice law may not permit an attorney who is “of counsel” to the judge’s professional limited liability company law firm to appear before the judge or any co-judge of the court in which the judge presides but may permit the attorney to appear on behalf of the firm before the full and part-time judges of other courts in which the judge does not preside.

Opinion 11-120 A part-time judge who is permitted to practice law may appear before administrative agencies and boards, state and local legislators and staff, and executive branch officers and staff on behalf of bona fide legal clients, but may not lend the prestige of judicial office to advance his/her own private interests or those of his/her legal clients.

Opinion 11-108 A judge may not act as a lawyer in a divorce proceeding against a defendant whom the judge previously arraigned on certain alleged sexual crimes that are likely to be raised in the context of a divorce and may not share in any fee resulting from such representation. Under the circumstances presented, in order to prevent the appearance that the judge’s personal knowledge of the defendant resulting from presiding over the arraignment is being used to the advantage of the defendant’s spouse in the divorce proceeding, the judge also should not permit his/her firm to undertake the representation.

Opinion 11-89 A part-time judge who rents office space within the judge’s private law office suite to another attorney and shares a fax line and high-speed copier with the attorney, where there is no indication that they are in any way associated in the private practice of law, need not prohibit his/her tenant from using his/her fax line or from appearing before other judges of the inquiring judge’s court, but is disqualified, subject to remittal, when the tenant/attorney appears before the judge.

Opinion 11-73 A part-time judge who practices law and previously presided over criminal charges against certain individuals arising from a particular incident, is prohibited from representing a different individual in a civil matter arising from the same incident. 

Opinion 11-52 Where a part-time attorney judge has exchanged referrals of two cases with an attorney who otherwise maintains their own independent legal practice, may the judge preside in cases involving that attorney? Is the attorney considered an “associate” of the judge for purposes of Section 100.6(B)(3)?

Opinion 10-197 (3) Subject to the Rules Governing Judicial Conduct, a part-time lawyer judge may practice law, including addressing issues involving natural gas drilling and hydrofracking.

Opinion 10-173 A part-time town justice who is permitted to practice law may represent a county in an action regarding conditions at the county’s detention facilities when the town justice presides in a town located in the same county.

Opinion 10-149 A part-time judge who practices law may apply for certificates of occupancy and building permits on behalf of clients in the village where the judge presides where such application is ministerial in nature and does not involve an exercise of discretion by the building inspector.

Opinion 10-126 When a judge is temporarily assigned to serve in a City Court pursuant to Section 107 of the Uniform City Court Act, the judge’s partners and associates may continue to appear before all other judges of the City Court, unless there is a reason other than their colleague’s temporary assignment to the City Court which would preclude them from doing so.

Opinion 10-105 May a part-time justice also serve as a full or part-time county attorney or assistant county attorney?

Opinion 10-104 May a part-time lawyer judge permit their law partner to prosecute traffic and code violations in a village court located within the town where the judge serves as town justice?

Opinion 10-94 (1) Where an attorney pays for space in an attorney town justice’s law office by performing legal work for the part-time justice’s law firm, and the said attorney town justice includes the attorney on the justice’s malpractice insurance coverage in exchange for a percentage of any fees the attorney earns, the attorney is the town justice’s associate and thus may not appear in the attorney town justice’s court either before him/her or his/her co-judge(s). (2) Absent any other disqualifying factors, an attorney town justice’s associate is not prohibited from appearing before the town zoning board or participating in other town administrative proceedings in the same town where the town justice presides. (3) An attorney who is an attorney town justice’s associate may appear on behalf of the justice’s clients or the attorney’s own clients in other justice courts in the same county where the town justice presides before both attorney and non-attorney justices.

Opinion 10-82 A part-time lawyer judge may have a brief conversation with a friend and/or client who calls the judge during an arrest and suggest that the friend and/or client contact another attorney when the judge knows that he/she cannot represent the friend/client because the resulting case would likely be filed in the judge’s court.

Opinion 10-73/10-100/10-167 (1) A part-time lawyer judge may appear before another part-time lawyer who presides in the same county and is not admitted to practice law in New York State but is permitted to practice law in another state. (2) A part-time lawyer judge may appear before another part-time lawyer judge who presides in the same county and is employed full-time by the Unified Court System as a full-time law clerk or a full-time court clerk.

Opinion 10-60 (2) Although a Judicial Hearing Officer may not appear before any judge of a court in which the JHO is designated to serve, the judges of that court need not disclose nor exercise recusal solely because the partners and associates of the JHO appear in a matter.

Opinion 10-54 A part-time lawyer judge may accept employment with a law firm to appear before the State Legislature, the State Executive Branch, and local governments on behalf of various clients, subject to certain limitations.

Opinion 10-30 May a part-time judge provide legal services to certain not-for-profit organizations which involve charitable and civic pursuits? 

Opinion 10-25 A part-time judge may not refer to his/her judicial status in advertisements for his/her private law practice.

Opinion 09-239 A judge may not permit his/her co-judge’s law practice associates to practice before the inquiring judge.

Opinion 09-235 (1) A town justice also may serve as town attorney for a different town, and may arraign defendants for that different town where neither town has a municipal police department, but receives law enforcement services from the New York State Police and the District Attorney serves as the prosecutor. (2) As town attorney, the town justice may not represent the town in any courts in the county before judges who are permitted to practice law.

Opinion 09-233 A part-time lawyer-judge who owns a building and rents space to four other businesses, including two attorneys, may not permit the attorneys to appear before either judge in the judge’s court because the attorneys are the judge’s tenants and they share a fax machine and number with the judge.

Opinion 09-230 A judicial hearing officer (JHO) who is designated to the JHO panel for the Supreme Court in a particular county may not practice in that court, but may continue to accept, complete or perfect appeals from other courts in the same county so long as he/she is not designated to the JHO panel in those courts, and may continue to serve as a mediator in matrimonial matters so long as no party has commenced an action in a court where the JHO has been designated to the JHO panel. [NOTE: Modified by Opinion 14-129(B) and by the 2019 amendment to Section 122.10(c). That provision now states: "A judicial hearing officer shall not participate as an attorney or, unless appointed by the court on terms including receipt of compensation pursuant to section 122.8 of this Part, as a referee, mediator, or arbitrator, or similar officer, in any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court."]

Opinion 09-178 A town justice should not also serve as administrator of the county’s assigned counsel program or conflict defender’s office.

Opinion 09-165 (1) A Judicial Hearing Officer is prohibited from serving either as chair or counsel to an Ethics Committee for a political party. ... (3) As a private attorney, a Judicial Hearing Officer may give legal and/or ethical advice to public officers, party officials and/or political party members so long as (A) he/she is formally retained so that an attorney-client relationship exists; (B) his/her actions are clearly identifiable as those of an attorney representing a client, and not as partisan political activity; and (C) he/she is fairly compensated for his/her legal services.

Opinion 09-163 May a part-time lawyer judge represent family members of police officers employed by a police department that appears in the judge's court?

Opinion 09-159 May a town justice accept a position as a part-time deputy corporation counsel in the same county, where the position would involve defense of negligence claims against the city in Supreme Court and federal court?

Opinion 09-149 The partners and associates of a part-time village justice and acting city court judge may appear in the entirely separate and distinct town court of the town in which the village court is located, but not in the village court or city court in which the judge presides. [NOTE: Modified in part by Opinion 10-126 and Section 100.6(B)(5), with respect to certain temporary assignments.]

Opinion 09-135 Are members of a part-time judge's law firm precluded from appearing in the City Court to which the judge has been temporarily assigned?

Opinion 09-128 A part-time judge whose law firm associate is village attorney to the same village where the judge presides and whose firm is special counsel to the same village where the judge presides is disqualified from presiding in all cases where the village is a party. The judge may not transfer all such matters to his/her co-judge or another court solely for the purpose of permitting his/her law firm to continue serving as special counsel and his/her associate to continue serving as village attorney. Consequently, if the judge must disqualify him/herself so frequently that his/her membership in the law firm interferes with the performance of his/her judicial duties, the judge must resign from one of the two positions. [NOTE: Modified by Opinion 19-31, which states that "a village justice whose law firm associate is the village attorney and whose firm is special counsel to the village, must either resign from the firm or resign his/her judgeship if there is any likelihood that village code matters will come before the court."]

Opinion 09-123/09-143 Except as otherwise provided by the Rules Governing Judicial Conduct, a part-time lawyer judge may serve as the defense attorney in cases that are prosecuted by the same assistant district attorney who serves as the prosecutor in the part-time lawyer judge’s court.

Opinion 09-115 May a part-time village justice's law firm act as outside counsel for the village, where the village is named as a defendant in state or federal court?

Opinion 09-110 A part-time judge who practices law may represent another part-time judge who presides in a different court in a civil legal matter.

Opinion 09-102 A part-time city court judge, who is elected to serve in one city court and is temporarily assigned to serve on an “as-needed” basis in another city court in the same county, may not appear before his/her co-judge from the other city court when that co-judge is serving as an acting Family Court judge in the same county while an order assigning him/her temporarily to the other city court is in effect.

Opinion 09-100 (1) A judge may not permit a lawyer who rents part of the law office suite from the judge and does “of counsel” work for the judge’s law practice to appear before either judge who presides in the judge’s court. (2) The judge should not transfer the lawyer’s cases to another court solely for the purpose of allowing him/her to continue the representation.

Opinion 09-83 May a part-time City Court judge (1) permit their law partner to practice in the City Court?

Opinion 09-65/09-67 A part-time lawyer judge who shares office space with another attorney or law firm, and any other judge who presides in the same court as the part-time lawyer, must prohibit the other attorney or members of the law firm from appearing in the court. [NOTE: Mostly overruled by Opinion 09-100.]

Opinion 09-59/09-86 Subject to certain restrictions and otherwise complying with the Rules Governing Judicial Conduct, a part-time judge who practices law may indicate his/her judicial title on the website of the law firm at which he/she practices.

Opinion 09-53 May a part-time lawyer judge or their law partner represent local law enforcement officers? 

Opinion 09-48 May a part-time lawyer judge ... (4) remain associated in the practice of law with an attorney who becomes a conflict defender in the same county; (5) permit the judge's law partner to appear in the judge's court, either before the judge personally or before a co-judge?

Opinion 09-06 It would be permissible for a part-time lawyer/judge, representing a client in a court where there are some judges before whom the part-time lawyer judge may appear and others before whom the judge may not appear, to request that a case be assigned to the judge(s) in that court, before whom the part-time lawyer judge may appear, if the request is made before that matter has been assigned to a judge.

Opinion 08-210/09-01 A part-time town justice who is permitted to practice law may not practice law in any court on which he/she serves, but may practice law in another court located in the same county where he/she presides before a judge who is not permitted to practice law and in any court located outside the county where he/she presides before a judge who is permitted to practice law and a judge who is not permitted to practice law. The judge’s associate may practice law in any court located in the same county where the judge presides before a judge who is permitted to practice law and before a judge who is not permitted to practice law and may use law office stationery in connection with such appearances as long as it does not disclose the judge’s judicial status. Once a case is commenced, a judge may not transfer the case to another non-lawyer judge solely to allow a lawyer-judge to appear.

 

Full-Time Judges; Winding Down One's Law Practice; Providing Legal Advice to Family

(22 NYCRR 100.4[G]; NY Const art VI, 20[b][4].)

This section collects recent opinions concerning the prohibition on practice of law by full-time judges and quasi-judicial officials, including issues related to winding down one's former law practice and the exception for providing uncompensated legal advice to members of the judge's family.  

Opinion 22-24(A) On the facts presented, a new full-time judge may continue to negotiate with their former law firm regarding the disposition of a limited liability company in which they both own a 50% interest, as long as negotiations are in good faith by both sides and the judge continues to take no active role in management of the building or operation of the business.

Opinion 22-15(A) A new full-time judge may (1) maintain a mailbox at their prior office address; (2) dispose of wills prepared while an attorney, as permitted by law; and (3) be reimbursed for expenses incurred before assuming the bench while handling a matter as an attorney.

Opinion 21-166 Although a full-time judge may serve on the board of trustees of a not-for-profit private school, the judge (1) may not serve on the board’s audit/risk committee and (2) may not solicit a legal opinion from an attorney on behalf of the board.

Opinion 21-132 (1) A part-time lawyer judge who was assigned as a special prosecutor before assuming the bench, and did not seek to withdraw or be relieved as special prosecutor on assuming the bench, may request and accept permissible legal fees and disbursements for prosecutorial work performed before assuming the bench, but may not accept compensation for prosecutorial work performed after assuming the bench. The judge must take reasonable steps to amend or supplement any previously submitted vouchers as needed and to return any compensation already received for prosecutorial work erroneously performed after assuming judicial office. 

Opinion 21-87 May a full-time judge prepare an uncontested divorce package for a former client for whom the judge had previously prepared a separation agreement while in private practice?

Opinion 21-17 Where a new full-time judge was previously a law firm partner and took a loan from the firm’s 401(k) profit sharing plan, the judge may remain in the plan temporarily in order to pay back the loan and receive the plan’s annual employer matching contribution based on the judge’s prior legal work and earnings. The judge must continue to disqualify from matters involving the former firm and the judge’s former partners and associates during this period and for two years after the financial relationship completely terminates. 

Opinion 21-13 A new full-time judge may engage in activities designed to wind down their prior law practice and collect previously earned legal fees, including billing an assigned counsel program for services “as an attorney” and complying with the requirements of a state administrative agency to obtain payment on previously awarded legal fees.

Opinion 20-204 On assuming full-time judicial office, must a new judge have their name removed from the glass of the shared suite in which they previously practiced law? Must they relinquish the office of notary public? May they collect a legal fee on a matter that is being handled by another attorney, where any legal fees are contingency-based and the judge is “expecting a fee once a settlement is reached”?

Opinion 20-175 May a full-time quasi-judicial employee accept part-time employment with a private agency doing remote legal document review?

Opinion 20-18 A full-time judge may personally appeal the denial of claims for health insurance coverage for his/her dependent child and may seek reversal of charges imposed by the child’s college related to the claims.

Opinion 19-121 A court attorney-referee may not volunteer with a local bar association group by providing pro bono legal services in another jurisdiction.

Opinion 19-85 Although a full-time judge may provide informal, uncompensated legal advice to his/her second-degree relative behind the scenes, he/she may not be included among those permitted, by court order, to review the relative’s litigation opponent’s confidential financial information.

Opinion 19-29 A full-time judge (1) may not provide individualized assistance and guidance to his/her fellow congregants in completing their health care directives but may give a general lecture on the subject; and (2) may not volunteer as an escort for individuals unknown to the judge who are visiting an abortion clinic in the presence of pro-life protesters.

Opinion 18-120 A full-time judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings, but may not participate in discussions with their retained counsel, as that constitutes the prohibited practice of law. To avoid even the appearance of impropriety, the judge must not attend meetings with counsel.

Opinion 18-22 A new full-time judge who previously served as guardian ad litem in a federal case may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem; (2) respond to the federal judge’s questions about whether a new guardian ad litem should be appointed; and (3) appear pro se concerning his/her fees for work previously performed as guardian ad litem.

Opinion 17-175 A full-time judge who has advised a former client that he/she (a) can no longer practice law and (b) has already personally turned over the entire trial file to the former client, need not take any further action in response to the former client's threat to report the judge for allegedly not returning the trial file.

Opinion 17-157 May an individual who has recently assumed full-time judicial office: (a) file a closing statement with OCA in an action and have releases signed and mailed; (b) deposit the settlement check; (c) distribute the client's portion of the settlement proceeds; and (d) file a closing statement in an action.

Opinion 17-148 May a full-time judge (1) give free legal advice to union members at a union-sponsored event and/or (2) lecture non-lawyer union members on general legal topics at a union-sponsored event?

Opinion 17-72 May a judge interpose a pro se answer in a real estate case in which the judge and his/her siblings are named defendants?

Opinion 15-200 May a full-time judge serve in the U.S. Army Reserve Judge Advocate General Corps?

Opinion 15-128 May a new full-time judge, whose former law partner is temporarily unavailable for medical reasons, continue to accept and deposit fees, issue checks to clients and the firm and pay expenses as necessary to wind up the law firm's affairs until the partner recovers or new counsel is hired? May the judge use law firm letterhead after assuming judicial office to explain the circumstances to judges presiding over his/her former partner's cases and to request adjournments as needed?

Opinion 13-116 A Housing Court judge may speak at a meeting of a property owners’ organization about court procedures in landlord-tenant matters but must not discuss pending or impending cases; must not provide trial strategy or legal advice; and must otherwise ensure that his/her presentation does not compromise his/her apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way. Before accepting this particular speaking engagement, the judge should also carefully consider whether he/she would also be willing, schedule permitting, to provide a similar lecture to a tenants’ organization on request.

Opinion 13-113 Under the circumstances presented, where the parties are unusually close friends whom the judge has known and treated as family for many decades, the judge may also provide them with uncompensated legal advice outside the courtroom.

Opinion 13-08 May a full-time judge be credited as an author of an appellate brief, where the judge represented the defendant just prior to assuming the bench and briefed six points raised on appeal before another attorney assumed the representation?

Opinion 12-190 May a new full-time judge continue to use the e-mail address the judge previously used for their law practice and personal e-mails?

Opinion 11-143 A full-time judge may serve on the Bylaws Committee of a not-for-profit athletic club, provided that the club’s outside counsel handles legal matters for the club and further provided that the judge will not give legal advice or engage in decisions likely to lead to litigation.

Opinion 11-119 A full-time judge who is a member of a homeowners’ association may not write an article for the association’s newsletter advising members of their legal obligation to obtain a specific type of insurance for their home pursuant to the offering plan and the association’s rules.

Opinion 11-55 A full-time judge may provide informal, uncompensated legal advice and assistance to his/her spouse in the selection of, and consultation with, counsel to represent the spouse in a proposed class action or other proceeding against the spouse's employer.

Opinion 10-52 (2) A judge may continue to use an email address created when the judge was an attorney for personal matters.

Opinion 09-12 A full-time judge who owns a condominium unit may act pro se to assert his/her personal rights as an individual owner in an action against the condominium board, but may not lead or advise the other condominium owners in making litigation decisions or give advice to legal counsel hired to represent a group of condominium owners in the dispute against the condominium board.

back to top

 

Judge as Litigant (Pro Se etc.)

This section collects recent opinions concerning what a judge may do when involved in a case as a litigant, in various capacities, whether appearing through counsel or pro se, and otherwise advancing the judge's own interests pro se before a tribunal or agency. 

Opinion 22-46 A judge who is experiencing apparent acts of retaliation from a self-identified "sovereign citizen" litigant may write to the county clerk on judicial stationery to advise them of the situation and request they authenticate any lien/judgment filings prior to recording.

Opinion 22-02 ... (2) Where a judge has been warned that court administrators will deem the judge “unfit for service” if the judge does not comply with the court system’s vaccination policies, the judge may communicate their opposition to this position, provided that such communication comports with the dignity of judicial office and eschews personal attacks on government officials.

Opinion 21-188 May a full-time judge serve as a class representative in a federal court action against a multi-national corporation?

Opinion 21-150 A judge may accept a law firm’s offer of pro bono representation for the purpose of filing a lawsuit to challenge the Unified Court System’s vaccine mandates, where the law firm has not come and is not likely to come before the judge, subject to a reporting requirement if the value of the waived legal fees exceeds $150. The judge, however, may not disseminate a blanket email to all judges asking if any are interested in joining the proposed lawsuit.

Opinion 20-156 A full-time judge may consult with an attorney regarding the judge’s possible medical malpractice case, even if the attorney regularly appears before the judge. If the consultation is more than strictly brief and preliminary, the judge will ordinarily be disqualified, subject to remittal where permitted, in matters involving the attorney and others from the same law office.

Opinion 20-75 Where a full-time judge has been sued by a former ward, may the judge provide his/her current attorneys with financial information he/she obtained during the guardianship, to assist them in collecting an award of attorneys’ fees from the former ward?

Opinion 20-60 A judge may ask the Commission on Judicial Conduct if they received any complaints against the judge's deceased spouse, but must not use or invoke his/her own judicial title or status in making this request.

Opinion 19-34 May a judge ethically undertake, as a Medicaid planning tool, the process of spousal refusal set out in the Social Services Law?

Opinion 18-160 A full-time judge may bring an Article 81 guardianship proceeding and, if successful, serve as court-appointed guardian for his/her first-degree relative.

Opinion 18-22 A new full-time judge who previously served as guardian ad litem in a federal case may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem; (2) respond to the federal judge’s questions about whether a new guardian ad litem should be appointed; and (3) appear pro se concerning his/her fees for work previously performed as guardian ad litem.

Opinion 17-82 A full-time judge, in his/her capacity as administrator of a first-degree relative's estate, may act pro se at the closing for the estate's solely owned real property, where he/she will transfer an administrator's deed conferring ownership from the estate to the buyer, deposit the buyer's down payment into a title company's escrow account, compute and adjust routine home expenses such as taxes and utilities, and exchange checks payable by or to the estate.

Opinion 17-72 May a judge interpose a pro se answer in a real estate case in which the judge and his/her siblings are named defendants?

Opinion 15-131 May a judge who is a party litigant make a legal argument that relies on the judge's judicial status?

Opinion 15-96 May a judge receive, as part of an equitable distribution, a percentage of the future legal fees earned by his/her former spouse upon the settlement or verdict of any cases deemed part of the former spouse's law practice?  If so, what are the judge's obligations when adverse counsel from those cases appear before the judge on unrelated matters?

Opinion 15-08 Where a judge is (or recently has been) a party in a contested matrimonial action, and his/her spouse (or ex-spouse) is a private attorney, what are the judge's obligations (1) when the spouse's law firm colleagues appear before the judge on other matters; (2) when the judge's attorney or the spouse's attorney appears; and (3) when an expert who evaluated a marital asset appears?

Opinion 14-141 A judge who is currently a defendant in a criminal case involving domestic violence charges should not preside over other domestic violence cases during the pendency of his/her own case and, if convicted, during the term of any sentence that may be imposed. If the judge is acquitted or if the judge completes his/her sentence and/or probation, the judge may preside over other domestic violence cases provided the judge concludes he/she can be fair and impartial.

Opinion 14-119 Under the circumstances presented, a judge may use official court stationery for correspondence in the judge’s pro se proceeding to expunge a frivolous multi-million dollar lien which a litigant appearing before the judge filed against the judge’s property.

Opinion 14-83 What avenues of relief may a judge ethically pursue in response to actions the judge believes to be harassing and bullying?

Opinion 14-58 When a pro se criminal defendant files a multi-million dollar lien against a judge’s property and the sole basis for the lien filing is the judge’s performance of his/her official judicial duties: (1) the judge may take all lawful steps necessary to clear his/her title and may pursue all lawful avenues to put an end to the vexatious lien filing; (2) it is not unethical for the judge to use the court’s clerical and other resources to assist in preparing a pro se expungement proceeding; and (3) the judge may continue to preside in the criminal case, provided the judge determines he/she can be fair and impartial, a matter confined solely to the conscience of the particular judge.

Opinion 13-188 A judge may permit his/her court attorney to commence a special proceeding to remove a public officer, subject to certain limitations.

Opinion 13-38 A judge may, in his/her capacity as a parent, express his/her concerns about the conduct of his/her child’s public school teacher by (a) signing a petition addressed to the principal, along with other parents; (b) speaking directly with the teacher; and (c) writing to the principal about the teacher, provided the judge does not invoke his/her judicial status in doing so.

Opinion 12-162 Under the circumstances presented, where a judge believes in good faith that certain municipal employees have deliberately sought to interfere with the judge's ability to perform his/her judicial duties and such alleged conduct has caused the judge to file a Notice of Claim against the municipality, the judge may continue to preside in matters involving the municipality, provided that the judge believes he/she can be fair and impartial in such matters. However, the judge is disqualified, subject to remittal, if one of the municipal employees identified in the Notice of Claim as allegedly engaging in offending conduct appears before the judge as a witness or an attorney.

Opinion 12-96 A judge charged with violating the vehicle and traffic law may negotiate with the prosecutor for reduction or dismissal of the charged violation, either pro se or through an attorney but must not use or invoke his/her judicial title/status in the negotiations.

Opinion 12-41 May a part-time attorney judge continue to commence or defend civil actions as a self-represented litigant in various justice courts in the same county where the judge practices law and presides?

Opinion 10-193 (1) A full-time judge may not take an active role in the management or operation of any real property that he/she co-owns as a tenant-in-common with a person who is not a member of his/her family and may not appear in court on matters relating to such property to the extent that he/she would be representing not only his/her own interest, but also that of his/her tenant-in-common. (2) A full-time judge may manage real estate as the sole member of the limited liability corporation that owns the property. To the extent legally permitted, the judge may appear pro se on behalf of the limited liability corporation unless the corporation is required by law to appear by or through counsel.

Opinion 10-43/10-44 (1) A part-time town justice may be a named plaintiff in the town’s insurer’s lawsuit against criminal defendants whose cases are pending in the same court where the judge presides and also may initiate his/her own lawsuit against the same defendants concerning their conduct as it relates to the town court criminal cases. 

Opinion 09-157 May a village justice appear before the village planning or zoning board to represent the judge's personal interests as an individual owner of real property and as the president of a corporation which owns real property?

Opinion 09-14 May a part-time lawyer judge or their law firm file a criminal complaint against a client who tendered an invalid check in payment of a fee? What if the judge's court has jurisdiction over such a complaint?

Opinion 09-12 A full-time judge who owns a condominium unit may act pro se to assert his/her personal rights as an individual owner in an action against the condominium board, but may not lead or advise the other condominium owners in making litigation decisions or give advice to legal counsel hired to represent a group of condominium owners in the dispute against the condominium board.

back to top

 

Fiduciary Activities; Appointment Powers

Sub-Topics: Serving as Fiduciary; Receiving Court Appointments | Exercise of Appointment Powers

 

Serving as Fiduciary; Receiving Court Appointments

(22 NYCRR 100.4[E]; 100.6[B][1]; Part 36; NY Const art VI, 20[b][4])

Opinion 22-18 May a part-time lawyer judge complete the Part 36 assignments they received as a receiver and referee before assuming the bench, even though they may not accept any new Part 36 assignments?

Opinion 21-123 A full-time court attorney-referee who receives a commission of over $150 for serving as executor of a family member's estate must report it to the clerk of the court as required by Section 100.4(H)(2).

Opinion 20-210 Where a law firm’s managing partner is the sibling of a New York State judge, a Surrogate’s Court judge in a county specified in Section 36.1(a)(11) may not appoint any attorney of the law firm to serve as the Public Administrator, nor may the Surrogate appoint the law firm as counsel to the Public Administrator. The Surrogate may nonetheless appoint eligible members of the law firm who are on the Part 36 list to serve in other fiduciary positions except as Public Administrator and counsel to the Public Administrator.

Opinion 20-197 A principal court attorney who hears and reports cases in foreclosure and matrimonial matters may not serve as executor of a former client’s estate, unless they establish to the Chief Administrative Judge’s satisfaction that they maintained a “longstanding personal relationship of trust and confidence” with the decedent and the Chief Administrative Judge approves the appointment in writing.

Opinion 20-174 A full-time judge may not serve as power of attorney for an elderly former client, unless the judge maintained a "longstanding personal relationship of trust and confidence" with them and obtains written permission from the Chief Administrative Judge..

Opinion 20-27 A full-time judge may serve as an executor under the will of relatives within the sixth degree of relationship, provided that such fiduciary activities do not interfere with performance of his/her judicial duties and do not constitute the practice of law, and need not formally seek permission to do so.

Opinion 19-125 A part-time attorney judge may continue to represent a client as guardian pursuant to a Part 36 assignment made before the judge assumed the bench. Where the appointment is a continuing one, the representation need not be completed within one year.

Opinion 18-180 May a full-time judge serve as an alternate trustee of the estate of a long-time family acquaintance and former client?

Opinion 18-160 A full-time judge may bring an Article 81 guardianship proceeding and, if successful, serve as court-appointed guardian for his/her first-degree relative.

Opinion 18-130 If the criteria of 22 NYCRR 36.1(b)(2)(I) are met, a full-time judge may allow a part-time judge to serve as a court-appointed guardian, and the part-time judge may so serve.

Opinion 17-82 A full-time judge, in his/her capacity as administrator of a first-degree relative's estate, may act pro se at the closing for the estate's solely owned real property, where he/she will transfer an administrator's deed conferring ownership from the estate to the buyer, deposit the buyer's down payment into a title company's escrow account, compute and adjust routine home expenses such as taxes and utilities, and exchange checks payable by or to the estate.

Opinion 17-33 May a newly elected full-time judge complete his/her service as executor of a former client’s will by signing a deed necessary to transfer title to an heir?

Opinion 16-164 A new full-time judge may continue to serve as a receiver in foreclosure pursuant to an appointment received before assuming the bench, provided his/her duties are ministerial in nature and completed within one year, if possible.

Opinion 15-142 May a part-time town judge, who is also executor of an estate that owns real property within the town, retain counsel and petition the town for approval of the beneficiaries' requested subdivision of the property? If so, may the judge thereafter preside when assistant town attorneys appear before the court?

Opinion 14-76 May a full-time judge perform additional, unexpected duties as the receiver for a matter the judge thought had been concluded before the judge assumed the bench?

Opinion 14-03 A full-time judge may serve as the executor of a parent’s estate, and may give uncompensated legal advice to his/her parent, but may not serve as the attorney for the estate.

Opinion 13-164 A newly elected full-time judge, who was involved in two final accountings as a court-appointed fiduciary before assuming the bench, may respond to requests from the appointing court for additional information or revisions and may contact the appointing court to determine the status of a previously requested order, but must complete his/her service or secure a substitute within one year after assuming the bench, if possible.

Opinion 13-141 A full-time judge must not serve as a friend’s health care agent unless he/she obtains the Chief Administrative Judge’s approval under Section 100.4(E)(1).

Opinion 11-117 On these facts, may a full-time judge serve as co-trustee of a testamentary trust?

Opinion 11-07 May a judge execute a final accounting affidavit relating to work which the judge performed as a receiver prior to taking judicial office and seek a statutory commission for those services?

Opinion 10-203(B) (1) A judge may continue to serve as trustee of a trust that benefits the judge’s first cousin.

Opinion 10-183 May a part-time judge complete their responsibilities as a referee in a foreclosure pursuant to an appointment made before the judge assumed the bench?

Opinion 10-169 May a judge complete certain necessary tasks to terminate two conservatorships that the judge held before taking the bench?

Opinion 10-47 May a judge, who had been previously appointed as guardian for an incapacitated person before assuming the bench, prepare and submit an application to be discharged as guardian, together with the final accounting, in a Supreme Court proceeding?

Opinion 10-16 May a judge, who served as co-executor of a relative's estate 10 years ago, pursue and distribute apparently undistributed assets of that estate which have recently come to light?

Opinion 09-227 May a part-time judge continue to serve as a referee and law guardian for matters in which the judge was appointed a fiduciary pursuant to 22 NYCRR part 36 prior to assuming judicial office?

Opinion 09-213 May a part-time judge continue to serve as a referee on matters to which they were previously appointed before assuming judicial office?

Opinion 09-168 A part-time lawyer judge who presides in a court located in the Third Judicial Department may be assigned or accept appointment as a law guardian unless such assignment involves a legal or ethical conflict of interest.

Opinion 09-103 Where a town justice was appointed to certain Part 36 fiduciary appointments before assuming the bench, may they complete the work and accept compensation for those assignments after the effective date of their appointment as town justice?

Opinion 09-85 A full or part-time judge may be a compensated trustee of his/her parents’ trusts. 

Opinion 09-72 A full-time judge may serve as legal guardian for his/her parent.

back to top

 

Exercise of Appointment Powers

(22 NYCRR 100.3[C][3]; Part 8; Part 36)

Opinion 22-56/22-67 A judge who appoints fiduciaries in a guardianship part (1) may direct court staff to update the Part 36 fiduciary list by contacting the listed individuals to inquire whether they are currently accepting such assignments; (2) may personally inquire whether a prospective appointee is available to accept assignment in a particular case, even if the Alleged Incapacitated Person is indigent, provided the judge avoids undue pressure or coercion; and (3) may also direct court staff to make such inquiry on the judge’s behalf.

Opinion 22-59 A judge is disqualified from appointing their personal financial manager to a fiduciary position.

Opinion 21-181 A full-time judge may hire a fifth-degree relative as their secretary.

Opinion 20-210 Where a law firm’s managing partner is the sibling of a New York State judge, a Surrogate’s Court judge in a county specified in Section 36.1(a)(11) may not appoint any attorney of the law firm to serve as the Public Administrator, nor may the Surrogate appoint the law firm as counsel to the Public Administrator. The Surrogate may nonetheless appoint eligible members of the law firm who are on the Part 36 list to serve in other fiduciary positions except as Public Administrator and counsel to the Public Administrator.

Opinion 19-130 A judge (1) may appoint a retired judge to the roster of neutrals for the same trial-level court in which he/she previously served, provided the appointment is made impartially and on the basis of merit; (2) may refer matters to the retired judge for mediation, unless he/she determines their relationship would create an appearance of impropriety; (3) may consider and decide the retired judge’s fee applications for mediation services, unless the judge determines their relationship might improperly influence the judge’s conduct or judgment.

Opinion 19-22 After Election Day, a judge may appoint an attorney who merely hosted a single campaign fund-raiser for the judge to a Part 36 position for which the attorney is qualified, provided the appointment is made impartially and on the basis of merit.

Opinion 19-11 May a judge appoint an otherwise eligible attorney to a Part 36 appointment in a pending proceeding, where the attorney’s former representation of the judge’s first-degree relative completely terminated over a year ago?

Opinion 18-130 If the criteria of 22 NYCRR 36.1(b)(2)(I) are met, a full-time judge may allow a part-time judge to serve as a court-appointed guardian, and the part-time judge may so serve.

Opinion 17-127 May a Surrogate appoint his/her former law firm associate as public administrator?

Opinion 16-168 May a judge appoint his/her former campaign treasurer to serve as a referee in a foreclosure action?

Opinion 16-65 May a judge who has the duty of appointing special prosecutors appoint an attorney who is related to his/her co-judge?

Opinion 15-126 May a judge appoint his/her former partners to fiduciary positions?

Opinion 15-63 May a judge who was "of counsel" to a law firm five years ago, and its tenant a decade ago, appoint a partner of that firm to a Part 36 fiduciary appointment?

Opinion 14-48 May a judge permit his/her third-degree relative to serve as an unpaid summer intern in the judge’s chambers?

Opinion 14-30 A judge who listed an attorney as a reference in the judge’s application for appointment or re-appointment need not disclose that fact and is not thereby disqualified from cases in which that attorney appears or that attorney’s partners and/or associates appear, provided the judge can be fair and impartial. The judge is not prohibited from appointing the attorney or his/her partners and/or associates to positions for which the attorney is eligible or his/her partners and/or associates are eligible, provided the judge exercises the power of appointment impartially and on the basis of merit.

Opinion 13-41 A judge who is a defendant in federal court in his/her official capacity based on his/her prior judicial acts in a particular case ... (3) is not precluded from appointing an attorney to Part 36 or other appointments merely because the judge and the attorney are co-defendants in the federal action.

Opinion 12-37 ... (2) A former judge is ineligible for appointments governed by Part 36 of the Rules of the Chief Judge for two years after the judge leaves judicial office in any court within the jurisdiction where the judge served....

Opinion 11-43 A Surrogate whose spouse is a partner in a law firm that frequently appears in the Surrogate’s Court ... (2) may not appoint his/her spouse’s partners or associates to serve as fiduciaries except in very limited circumstances.

Opinion 10-107/10-158 (1) Provided a judge’s former law clerk is otherwise qualified, a judge may appoint his/her former law clerk to Part 36 positions, except where the case was pending before the judge during the law clerk’s term of employment. However, if a former law clerk the judge so appointed to a Part 36 position appears before his/her former judge in an adversarial role within one year after his/her employment with the judge ended, the judge must disclose that employment relationship, but has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case. (2) Assuming the law clerk is otherwise qualified, a judge may appoint his/her former law clerk as a referee to hear and report findings of fact and conclusions of law pursuant to Surrogates Court Procedure Act §506 and as a referee to supervise disclosure pursuant to Civil Practice Law and Rules §3104(a) anytime after the law clerk retires, but need not disclose their former employment relationship.

Opinion 10-52 (1) A judge must exercise disqualification, subject to remittal, when the judge’s spouse’s first cousin, who is an attorney, appears in the judge’s court. The judge may not appoint him/her as a law guardian, nor should the judge ask his/her co-judge to assign the judge’s spouse’s first cousin to the judge’s part. 

Opinion 10-41 May a judge give assignments pursuant to County Law article 18-B to a judge who recently retired from the same court? Does it make a difference that the judge's current law clerk previously worked for that recently-retired judge for ten years?

Opinion 09-191 A judge who was admonished by the Commission on Judicial Conduct, but who does not know the identity of the complainant, need not disclose that the disciplinary action occurred when an attorney who could be the complainant subsequently appears in the judge’s court; nor is the judge precluded from appointing such attorney to fiduciary positions for which the attorney otherwise qualifies.

Opinion 09-136 Where a judge does not know the identity of the complainant, the judge need not disqualify him/herself or disclose the disciplinary proceeding when one of several possible complainants appears as an attorney, and the judge is not precluded from appointing the attorney to serve as assigned counsel or attorney for the child or in any other fiduciary position.

Opinion 09-82 May a judge appoint a current judicial hearing officer who serves in Family Court to a fiduciary position in the same county’s Supreme Court?

Opinion 09-60 Assuming it is legal to do so, a judge who is subject to §36.1(a)(11) of the Rules of the Chief Judge concerning appointments by the court may permit a public administrator who practices law with the judge’s former campaign treasurer to remain in office and is not required to disclose the public administrator’s relationship to the judge’s former campaign treasurer.

Opinion 09-43 ... (2) The judge should not appoint the attorney who is his/her personal secretary’s child to serve as assigned counsel or as a law guardian.

back to top

 

Serving as Arbitrator or Mediator

(22 NYCRR 100.4[F]; 100.6[B][1]; NY Const art VI, 20[b][4].)

Opinion 22-68 A part-time town justice may simultaneously serve as an administrative law judge for a town code administrative bureau in the same town.

Opinion 21-84 A part-time lawyer judge may serve as a non-partisan hearing officer for the state board of elections to conduct civil enforcement hearings.

Opinion 21-43 May a judge sit on the board of a local human rights commission, which is involved in investigating, conciliating, and adjudicating employment, housing, public accommodation and credit discrimination claims?

Opinion 20-178 May a full-time judge, who served as a referee in foreclosure before assuming the bench, continue to hold the monies in escrow pending a court order directing their release?

Opinion 20-79 As long as a JHO remains listed on a court’s assignment panel, he/she may not serve as an arbitrator or mediator for any contested matter in a court in a county where he/she serves on a JHO panel for such court, unless appointed by the court to so serve.

Opinion 18-145 A part-time judge may serve as a volunteer judge for a Peer Court in the judge’s county, subject to certain restrictions.

Opinion 17-25 May a full-time judge serve on the tribunal of a not-for-profit entity as the representative of one of its constituent members, where the tribunal has "jurisdiction to hear and determine controversies and disputes" among various constituent members?

Opinion 14-142 May a judge serve as a hearing officer for the New York State Joint Commission on Public Ethics?

Opinion 13-121 A part-time judge may accept appointment as an arbitrator in a mandatory arbitration program established pursuant to the Rules of the Chief Judge in another local court of broader jurisdiction.

Opinion 13-72 A part-time attorney/judge who occasionally performs arraignments for a neighboring municipality’s court, but is not an “acting” member of that court and continues to sit as a judge of his/her own court when performing such arraignments, may be included on a list of attorneys who are willing to serve as compensated arbitrators in that municipality.

Opinion 12-123 Unless prohibited by law, a former judge who is designated as a judicial hearing officer in a particular court may also accept an appointment as a special referee to supervise discovery in a matter pending in the same court and may accept compensation for the fair value of services rendered. [Note: Opinion 20-79 states "Significantly the 2019 amendment to Section 122.10(c) effectively modifies Opinion 12-123 with respect to compensation. Although a JHO in a particular court may still accept an appointment as a special referee to supervise discovery in a matter pending in the same court, his/her compensation is now limited by Section 122.8."]

Opinion 11-15 A JHO may serve as hearing officer for a municipality’s disciplinary hearing involving a police officer if the JHO is not on the JHO panel for the municipality’s court and does not preside in criminal or other police related matters.

Opinion 09-91 May a part-time judge serve as a hearing officer for the County Health Department?

Opinion 09-88 A part-time town justice may volunteer as a mediator for a mediation program the Unified Court System funds, as the program charges no fee for its services.

Opinion 09-23 May a Court of Claims judge sit as an arbitrator in Small Claims Court, notwithstanding Court of Claims Act §3?

 

back to top

Performance of Judicial Duties - Plea Agreements; Traffic Diversion Programs; Assignment of Counsel; Authority or Power of Judge; Judicial Assignments

Opinion 22-56/22-67 A judge who appoints fiduciaries in a guardianship part (1) may direct court staff to update the Part 36 fiduciary list by contacting the listed individuals to inquire whether they are currently accepting such assignments; (2) may personally inquire whether a prospective appointee is available to accept assignment in a particular case, even if the Alleged Incapacitated Person is indigent, provided the judge avoids undue pressure or coercion; and (3) may also direct court staff to make such inquiry on the judge’s behalf.

Opinion 21-149    A judge may allow their court staff to solicit lawyers for voluntary pro bono representation of defendants in consumer debt cases, provided the judge avoids the appearance of coercing attorneys to participate in such representation. Additionally, allowing volunteer attorneys to appear virtually as lawyer for the day is acceptable.

Opinion 21-114(A) A judge may disclose the judge’s own preferred gender pronouns in the judge’s email signature block and during a virtual proceeding in which the judge presides.

Opinion 21-108 Whether or not a judge may unilaterally substitute the owner/registrant for the operator of an alleged overweight vehicle is a legal question, which is beyond this Committee's jurisdiction. Similarly, whether or not any or all of the interested parties need to request or consent to the substitution is also a legal question beyond the jurisdiction of this Committee.

Opinion 21-106 Although it is more efficient for a court clerk to request a "long form information" from an arresting agency to support the issuance of an arrest warrant, this is a prosecutorial task and using the court's staff and database for this purpose is ethically impermissible.

Opinion 21-105 May a judge accept and decide a "universal motion" from the District Attorney to dismiss certain specified marijuana charges, pursuant to a change in the Penal Law, "in lieu of requiring the submission of a written disposition for every arrest"?

Opinion 21-104 Where it is legally appropriate to do so, a judge may broadly solicit participation by potential amici curiae by issuing a notice to the bar that will be (a) electronically filed, (b) sent to the New York Law Journal for publication and (c) sent to bar associations and/or committees. Any such notice must be consistent with generally applicable limitations on judicial speech and conduct, including the judge's obligation to maintain public confidence in the judge's impartiality, integrity, and independence.

Opinion 21-56 (1) This Committee, unlike an individual judge, cannot determine the constitutionality of the enabling statute for a school bus stop-arm violation monitoring program nor whether any resulting guidelines, requirements, directives, forms, notifications or advisements emanating from that statute are lawful and thus ethically permissible. (2) A judge must comply with legal mandates. Absent a legal requirement to do so, a judge should not voluntarily comply with guidelines that are not directly enabled by the law, to the extent that they require a judge to engage in ethically impermissible conduct.

Opinion 21-46 A judge may accept or reject plea dispositions but, in doing so, may not adopt a broad policy that omits individualized determinations.

Opinion 21-02 A judge who believes that the statutory obligation to provide a reason for discretionary recusal is unconstitutional may act in accordance with a legal determination made by the judge on the record, but may not conceal the true basis of the judge’s ruling.

Opinion 20-206 As described, the proposed plea reduction form is impermissible.

Opinion 20-177 A town or village justice has discretion, based upon the totality of circumstances involving the law enforcement officer assigned to their court, to permit, or not, the officer to distribute a prosecutor’s plea agreements in or adjacent to the court at the prosecution’s request. In exercising this discretion, the judge must consider factors such as the officer’s actual and apparent role in court proceedings and the need to avoid even the appearance that the court itself is serving as an intermediary for the prosecution.

Opinion 20-165 A judge may ethically decline to participate in a district attorney’s traffic diversion program.

Opinion 20-152 A judge has the discretion to determine whether or not to accept a guilty plea under the circumstances described.

Opinion 20-122 May a town justice adopt a procedure for handling uniform traffic tickets, whereby the court will (1) schedule the prosecution to come in first to review the tickets and “essentially fil[e] a written plea offer with the Court” by writing the plea offer on the ticket and signing it and then (2) on a later date, advise defendants that the ADA “has filed with the Court a written plea offer as follows”?

Opinion 20-69 When misdemeanor-level Vehicle and Traffic Law charges are before a judge on a simplified traffic information, the judge may not ask the prosecuting agency to file a long form information so the judge can sua sponte issue a criminal summons or an arrest warrant for a defendant who failed to appear.

Opinion 20-58 A part-time lawyer judge must not publish his/her judicial decisions on his/her personal social media website, where doing so may appear to (1) invite discussion, comment, or other input from members of the public or (2) indirectly promote his/her law practice.

Opinion 20-39 May a judge create generic thank you cards for his/her chambers, featuring a stock image of the exterior of the courthouse and bearing a message saying “Thank you” followed by his/her judicial title and name?

Opinion 19-155 (1) A judge may, but is not required to, disclose his/her concerns to any appropriate authority, including the village police chief, about whether a newly appointed provisional village police officer has proper legal authority and credentials to carry a firearm. (2) A judge who concludes he/she is legally authorized or required as a firearms licensing officer to initiate an investigation into the propriety of the new officer’s possession of a pistol may take whatever steps he/she deems legally permitted or required in that capacity. (3) A judge who concludes he/she has a reasonable, good-faith basis to question the firearm authorization status of a police officer who has been designated to provide security in the judge’s courtroom may, but is not required to, meet with the village police chief concerning the issue. If the judge concludes the officer is not properly authorized, trained, and/or licensed to carry a firearm, he/she may take any lawful measures to ensure order and decorum in his/her courtroom, including, but not limited to, objecting to the officer’s placement in his/her courtroom and consulting with court administrators on how to proceed.

Opinion 19-117 If authorized by law, a town or village justice may notify criminal defendants of court appearances without simultaneously notifying defense counsel.

Opinion 19-142 Must a judge recall warrants on a defendant’s failure to pay a fine and/or surcharge due to recent revisions in the Criminal Procedure Law? May the judge enter a civil judgment for the unpaid amount?

Opinion 19-145 A judge may not facilitate a traffic ticket plea reduction program instituted by the District Attorney’s office that would interfere with the court’s exercise of judicial review and discretion.

Opinion 19-63 (1) A town justice may not agree to a private meeting with the town comptroller and town board member(s) for the express purpose of explaining and justifying an apparent decrease in revenue. (2) This prohibition does not preclude the judge from communicating with town officials concerning the amount of fines and fees collected and/or the court's budgetary needs, as permitted by statutes and prior opinions. (3) The judge may also publicly discuss the court's operations, including a decrease or increase in revenue, at a town board meeting or public forum, provided he/she (a) is careful not to cast doubt on his/her integrity, impartiality, and independence in adjudicating matters that could potentially result in revenue for the town and (b) avoids impermissible comment on any identifiable pending or impending case before him/her.

Opinion 19-61 The Rules Governing Judicial Conduct do not preclude a town justice from requiring a defendant to perform community service with the town government, provided it is lawful to do so.

Opinion 19-52 On these facts, a judge must not refer or sentence defendants to a restorative justice program sponsored by an alternative dispute resolution center where he/she volunteers as a small claims mediator. Once the judge terminates his/her involvement with the center, however, he/she may refer or sentence defendants to the center’s restorative justice program on a case-by-case basis if legally permitted and appropriate.

Opinion 19-47 A judge may not have a court clerk enter the proposed fine on a motorist’s mail plea from a fixed schedule of fines developed by the judge -- even though the judge intends to personally review, confirm, initial and approve the fines entered by the clerk -- where the underlying fixed schedule pre-selects specific fines from the statutory range and therefore is likely to create an appearance that the judge has pre-judged certain categories of cases without individualized consideration of relevant legal factors.

Opinion 19-45 A support magistrate may report a litigant’s apparently criminal conduct to law enforcement but is not ethically required to do so. Whether and how he/she may do so in compliance with applicable statutes and regulations raises a legal question, not one of judicial ethics.

Opinion 19-35 Where an attorney who practices in a specialized part manifests extremely rude, malicious, and belligerent behavior that, if true, appears to raise serious concerns about the attorney’s fitness to practice law: (1) the propriety of transferring the attorney’s cases to another venue is a legal or administrative question the Committee cannot address; ...

Opinion 19-03 (1) A judge may not email governmental agencies to obtain evidence in a disputed litigation. (2) A judge may invite attorneys to email motion papers directly to him/her, but should require that opposing counsel be copied on the email.

Opinion 18-73 The Committee cannot determine whether judges have the legal authority to introduce new steps or procedures for defendants who plead guilty by mail under Vehicle and Traffic Law 1805, as this presents a strictly legal question.

Opinion 17-176 Before seeking ethics advice on how to interact with unrepresented litigants, a New York City Housing Court judge should first consult with his/her supervising or administrative judge concerning applicable policies, procedures, and resources.

Opinion 18-26 May a town or village justice allow his/her court clerks to send notice of animal abuse convictions to the Sheriff’s Department pursuant to a county animal abuse registry law?

Opinion 18-57/17-166 A judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority. However, the judge must still abide by generally applicable ethical principles, to the extent necessary and appropriate, even when acting as a licensing officer, and thus the judge (1) must not be swayed by public clamor or fear of criticism; (2) must respect and comply with the law, including any due process requirements for such proceedings; and (3) must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality.

Opinion 18-25 (1) A judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority. (2) The Committee cannot address legal questions such as whether or how a judge, in his/her capacity as a firearm licensing officer, may consider an applicant’s request to lift the suspension of a firearm license or which persons must be notified and given an opportunity to participate.

Opinion 18-40 A full-time judge (1) may serve on the board of a county’s assigned counsel program, where the program does not engage in litigation but instead contracts with private attorneys to undertake the representations; (2) may appoint qualified attorneys as assigned counsel in legally appropriate circumstances, even when those attorneys are his/her fellow directors; (3) may not serve on the board of a not-for-profit landlord that brings eviction proceedings in his/her court.

Opinion 18-13 May a judge ethically proceed with an off-hours arraignment if the defendant is not represented by counsel and, if not, how long must the judge wait for defense counsel to appear before adjourning the matter?

Opinion 18-04(B) If permitted by governing law, regarding documents that require the judge’s signature and whose contents include elements of judicial discretion, it is ethically permissible for the judge to authorize a court clerk to affix the judge’s signature to the document, provided (1) the judge has not, in fact, delegated his/her judicial functions, but personally made the decision; and (2) the judge consents to the use of the signature stamp on that document.

Opinion 18-51 (1) On notification from an arresting agency that a defendant requires immediate arraignment, is it ethically permissible for the judge to “call attorneys from a list provided by the county 18B program to inquire if the attorney is willing to appear on behalf of the defendant?” (2) If so, may the judge then preside over the arraignment once the defendant and the defense attorney are present? (3) Must notice be given to the District Attorney of an immediate arraignment and, if so, may the judge proceed with the arraignment if the prosecutor declines to appear or is unavailable? (4) Does a judge’s effort to effectuate a criminal defendant’s right to counsel at arraignment (or at any other time where the defendant’s civil liberties are impacted) automatically create an impermissible appearance of partiality or otherwise disqualify the judge from presiding in the case? (5) May the judge preside over an arraignment if a “good faith effort” is made to find counsel but no attorney is available? (6) May the judge refuse to proceed with an arraignment if a defendant is not represented by counsel during the arraignment?

Opinion 18-36 A judge may promote diversity in courtroom participation by including a statement in his/her part rules encouraging litigators to give their knowledgeable junior colleagues more speaking and leadership roles in his/her courtroom.

Opinion 18-49 Whether a judge is authorized to act on certain declarations of delinquency from the probation department raises primarily legal questions beyond the Committee’s jurisdiction. However, a judge who makes a good-faith legal determination concerning his/her legal authority to act on these submissions necessarily acts ethically, even if the decision is reversed on appeal.

Opinion 18-109 (1) A full-time judge need not report on his/her annual statement of financial disclosure his/her theoretical involvement with a company the judge believed was completely dissolved and/or abandoned before he/she assumed judicial office, even though it is still listed as “active” on the NYS Department of Corporations website, where (a) the judge has never received any compensation or seen any evidence of business or other activity by the company, (b) the founder assured the judge that the company was never funded, never engaged in any business activity, was abandoned years ago and was thought to be dissolved, and (c) the founder has agreed that the judge should be deemed to have resigned from any theoretical involvement with the company several years ago nunc pro tunc. (2) On these facts, the judge should ask the company’s founder in writing to formally dissolve the apparently abandoned company; once the judge has made this request, the judge has no further ethical obligation.

Opinion 17-176 Before seeking ethics advice on how to interact with unrepresented litigants, a New York City Housing Court judge should first consult with his/her supervising or administrative judge concerning applicable policies, procedures, and resources.

Opinion 18-57/17-166 A judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority. However, the judge must still abide by generally applicable ethical principles, to the extent necessary and appropriate, even when acting as a licensing officer, and thus the judge (1) must not be swayed by public clamor or fear of criticism; (2) must respect and comply with the law, including any due process requirements for such proceedings; and (3) must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality.

Opinion 18-114 A court may create and distribute a list of attorneys who are on the assigned counsel panel and are willing to represent litigants on a sliding fee scale, where the list contains a disclaimer that the court and its staff are not recommending any attorney.

Opinion 18-115 A judge may provide a letter to both sides in an ongoing proceeding which includes an excerpt from the transcript indicating that a particular issue has been resolved with no finding of medical abuse or neglect.

Opinion 17-34 On receiving a guilty plea by mail to a Vehicle & Traffic Law charge, may a judge send a form letter advising the defendant what his/her sentence will be if the court accepts the plea and stating that if the defendant wishes to change his/her plea to not guilty, he/she should appear in court at a specified date and time?

Opinion 15-220 If applicable law authorizes certain judges to delegate the authority to accept guilty pleas and set fines in certain matters, is it ethically permissible for such judges to delegate that authority under the applicable statutory scheme?

Opinion 16-42 May a judge sign a final decree of judicial settlement pursuant to SCPA § 2602(1)(b), following disqualification of the judge who issued the underlying decision?

Opinion 16-08 May a full-time City Court judge accept a temporary assignment as a Family Court judge?

Opinion 15-232 May a judge, on his/her own initiative and before the parties' first appearance, request and review grand jury minutes and/or discovery materials produced to the defense?

Opinion 16-68 May a judge voluntarily comply with guidelines requiring ethically impermissible conduct when deciding a defendant's eligibility for assigned counsel?

Opinion 16-91 May a town justice ask local not-for-profit organizations if they are willing to accept court placement of defendants to serve community service sentences, and thereafter provide their contact information to the alternatives-to-incarceration program's administrator? After doing so, what steps must the judge take if the judge wishes to participate in activities organized by such entities?

Opinion 16-48 Must a judge who ordered a transcript to be redacted provide an unredacted copy to counsel on request?

Opinion 15-226 May a judge order payment to a former guardian ad litem for services which pre-date the attorney's employment with the Unified Court System? Does it matter if the former guardian ad litem now serves as principal law clerk to another judge (i.e., one who is not presiding in the case)?

Opinion 16-09 May a judge send a letter to defendants who plead guilty by mail advising them sua sponte that they may change their plea to "not guilty" and either conference the matter with the prosecutor or negotiate a reduced plea?

Opinion 15-152 May a judge accept a plea conditioned on a defendant writing an essay about traffic safety?

Opinion 15-34 May a judge approve a plea agreement which requires a defendant to participate in a district attorney's traffic ticket diversion program, when the program involves a non-refundable application fee?

Opinion 16-113 May a judge "participate" in a traffic diversion program where defendants are charged a fee to participate, and the judge is concerned the fee may violate Vehicle & Traffic Law §1804?

Opinion 16-92 May a part-time judge participate in a District Attorney's traffic diversion program by (1) adjourning a defendant's case for 60 days at the DA's request so the defendant can take part in the program and then (2) dismissing the charges at the DA's request after successful completion, where defendants are charged a fee to participate in the diversion program?

Opinion 15-230 May a judge require defendants seeking re-sentencing under CPL 420.10 to complete a form requesting the same information the judge would otherwise request orally in court?

Opinion 15-127 May judges delegate to their court clerks the authority to impose a pre-determined fine for traffic infractions, by means of a standing court order with a fixed schedule of fines?

Opinion 15-85 May a judge sua sponte review a defendant's driving history before accepting or rejecting a proposed plea agreement? If so, must the judge disclose the contents of the driving history to the parties and counsel?

Opinion 15-56 May a judge post the procedure for resolving a traffic ticket on the Unified Court System's website?

Opinion 15-50 May a judge, in order to collect fines or surcharges he/she imposed on a defendant for parking violations, contact another court to ask that payment be made a condition of any disposition of the defendant's case in the other court?

Opinion 15-47 May a judge require, as a condition of joining a treatment court program, that the defendant must agree to participate in an exercise program? If so, may the judge thereafter attend or participate in the exercise program together with treatment court participants?

Opinion 17-104 May a judge hold "off-hours" arraignments in a publicly accessible area of a county jail as part of an initiative to provide counsel to defendants at arraignment?

Opinion 17-114 May a judge presiding over a civil matter involving allegations of sexual abuse committed by a non-party minor solicit pro bono representation for the non-party minor?

Opinion 17-110 A judge may suggest alternatives to a plea agreement offered by a defendant and prosecutor, provided the judge does so non-coercively and is careful not to create an impression he/she has prejudged the case's merits. Prior opinions are modified to clarify that a judge may, subject to significant ethical, constitutional, and statutory limits, initiate, suggest, or facilitate plea agreements.

Opinion 17-144 A town or village justice who is not a notary public may authenticate documents where legally permitted to do so, provided he/she does not improperly lend the prestige of judicial office to advance private interests or otherwise create an appearance of impropriety. An otherwise permissible good-faith authentication of a document does not become improper merely because it is submitted in litigation.

Opinion 17-123 A judge who presides in veterans treatment court may write to legislators asking for names of potential peer mentors to work with veteran-defendants in the program, provided the judge avoids both actual coercion and its appearance when requesting participation. Alternatively, the judge may authorize his/her resource coordinator or mentor coordinator to write such a letter.

Opinion 17-152 (1) A Family Court judge may inform children that the court is willing to display their artwork in public spaces and identify them by first name or initials and may personally solicit donations of children's artwork for display in Family Court from local school teachers and/or children who have pending permanency hearings. (2) The judge may personally send a thank-you note to a teacher or child who sends artwork to the court, but should copy all parties or their attorneys if the child is appearing before the court. Alternatively, the judge may direct the chief clerk to send a thank-you note on behalf of the court. (3) Subject to any appropriate administrative approvals, the judge may direct the Family Court to (a) issue a press release about the court's children's art gallery and invite children to submit artwork; (b) invite the child artists, their families, and, if applicable, their attorneys, to an "opening" display of their artwork; and (c) accept the children's artwork as gifts to the Unified Court System.

Opinion 17-159 Under these circumstances, a town justice may respond to the town's fraud risk questionnaire about the financial and anti-fraud controls in the town court.
 

back to top

 

Ex Parte Communications

(22 NYCRR 100.3[B][6])

This section collects recent opinions about ex parte communications, such as which ex parte communications are permissible; avoiding or limiting impermissible ex parte communications; and whether ex parte communications must be disclosed. 

Opinion 22-56/22-67 A judge who appoints fiduciaries in a guardianship part (1) may direct court staff to update the Part 36 fiduciary list by contacting the listed individuals to inquire whether they are currently accepting such assignments; (2) may personally inquire whether a prospective appointee is available to accept assignment in a particular case, even if the Alleged Incapacitated Person is indigent, provided the judge avoids undue pressure or coercion; and (3) may also direct court staff to make such inquiry on the judge’s behalf.

Opinion 22-34 A judge who receives ex parte correspondence from an inmate claiming that the conviction was obtained through perjured police testimony: (1) may not forward the correspondence to the Conviction Integrity Unit, but may instead treat this correspondence as the judge treats other impermissible ex parte communications; and (2) need not disqualify if an application seeking to vacate the conviction is eventually filed and assigned to the judge.

Opinion 21-182 A judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project, and may meet as a group with other participating judges and committee members to receive feedback from the volunteer observers, but may not meet privately with volunteer observers to discuss their feedback on the judge’s own court sessions.

Opinion 21-165 1) Where court staff have relayed to a judge certain remarks made openly by a physician witness while waiting for the case to be called, and the judge concludes those remarks reflect gender and other bias and a lack of professionalism to a level that could directly impact the doctor’s credibility and/or might be relevant in evaluating the conclusions reached in the physician’s report, the judge ... (b) must disclose the remarks to all parties so that they may be heard on the matter.

Opinion 21-99 A judge may not monitor police communications on police scanners or police scanner apps for the purpose of learning who has been arrested in the judge's jurisdiction and will likely come before the judge's court, as such activity deliberately and purposefully exposes the judge to ex parte information about pending or impending cases in the judge's court, exclusively from a law enforcement perspective.

Opinion 20-195 (1) A judge need not disclose, in a matter currently pending before the judge, a prosecutor’s ex parte communication asking if the judge would honor a grand jury subpoena concerning a related but now-concluded case, where the communication contained no information pertaining to the merits of the pending matter. (2) The judge may continue to preside unless the judge believes they cannot be impartial.

Opinion 20-107 May a town court provide only a copy of the weekly town court calendar to only the Assigned Counsel Program on an on-going basis?

Opinion 20-80 A court-attorney referee may set up an email auto-response to provide general legal and ethical information to unrepresented litigants and others, provided the message is consistent with the Rules Governing Judicial Conduct. However, the referee should not refer to him/herself as a “jurist” in this auto-response message.

Opinion 20-58 A part-time lawyer judge must not publish his/her judicial decisions on his/her personal social media website, where doing so may appear to (1) invite discussion, comment, or other input from members of the public or (2) indirectly promote his/her law practice.

Opinion 20-38 (1) A judge may discuss pending or impending matters with other judges and court clerks at a magistrate’s association meeting, assuming this is a confidential setting with no others present. (2) Where a judicial association’s email contact list includes individuals who are not judges or court personnel, a judge cannot assume the emailed discussions are confidential or private and therefore must take particular care to observe generally applicable limitations on judicial speech.

Opinion 19-117 If authorized by law, a town or village justice may notify criminal defendants of court appearances without simultaneously notifying defense counsel.

Opinion 19-107 (1) On these facts, where a judge, in the course of his/her judicial duties, becomes aware of a party’s apparent attempt to undermine the judge’s judicial decision by filing a declaratory judgment action in another court and seeking a default judgment without disclosing related actions, the judge may, but is not required to, inform the other judge of the relevant facts. If the judge chooses to contact the other judge, he/she must do so in writing and copy both sides. ...

Opinion 19-08 A judge may consult ex parte with duly elected or appointed judges, even if they preside in courts other than the Unified Court System, concerning cases before him/her. In doing so, the judge should make reasonable efforts to preserve confidentiality.

Opinion 19-03 (1) A judge may not email governmental agencies to obtain evidence in a disputed litigation. (2) A judge may invite attorneys to email motion papers directly to him/her, but should require that opposing counsel be copied on the email.

Opinion 18-99 A judge was inadvertently exposed to an ex parte communication concerning a case. He/she terminated the communication as quickly as possible, discouraged further contact, and promptly disclosed the information to counsel at arraignment. The judge believes he/she can be fair and impartial. Need the judge take any further action?

Opinion 18-51 (1) On notification from an arresting agency that a defendant requires immediate arraignment, is it ethically permissible for the judge to “call attorneys from a list provided by the county 18B program to inquire if the attorney is willing to appear on behalf of the defendant?” (2) If so, may the judge then preside over the arraignment once the defendant and the defense attorney are present? (3) Must notice be given to the District Attorney of an immediate arraignment and, if so, may the judge proceed with the arraignment if the prosecutor declines to appear or is unavailable? (4) Does a judge’s effort to effectuate a criminal defendant’s right to counsel at arraignment (or at any other time where the defendant’s civil liberties are impacted) automatically create an impermissible appearance of partiality or otherwise disqualify the judge from presiding in the case? (5) May the judge preside over an arraignment if a “good faith effort” is made to find counsel but no attorney is available? (6) May the judge refuse to proceed with an arraignment if a defendant is not represented by counsel during the arraignment?

Opinion 18-38 Absent any factors that would create an appearance of impropriety, a judge who has taken over a case on another judge’s retirement due to age may initiate ex parte communications with the retired judge concerning that case, and may discuss legal and factual issues with him/her. The judge need not disclose such communications to the parties or their counsel.

Opinion 17-112 May a judge grant the probation department's ex parte request to exempt from disclosure the victim impact statement contained in the pre-sentence investigation report?

Opinion 17-107 A judge must not permit or consider a witness's ex parte request to dismiss a traffic summons for a moving violation, unless the judge determines that applicable law specifically authorizes him/her to do so.

Opinion 17-53 What are the obligations of a judge presiding in a juvenile delinquency matter, who receives a social media message from the victim's first-degree relative containing substantive discussion of the case?

Opinion 17-15 May a Family Court judge send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge?

Opinion 16-140 May a judge consider a defendant's written form application for assigned counsel ex parte and make a determination of financial eligibility on an ex parte basis, where the form focuses solely on the defendant's financial information and does not invite substantive communications? What factors distinguish Opinion 16-68 and Opinion 16-140?

Opinion 16-156 A judge should not send a thank you note in response to a laudatory ex parte letter from an attorney who recently appeared before the judge.

Opinion 15-209 May a part-time judge consult ex parte with court personnel who staff the City, Town and Village Courts Resource Center? Must there be notice and/or disclosure to the parties in the case?

Opinion 15-178 In a court where judges repeatedly receive attempted ex parte communications from elected officials on behalf of their constituents, what steps should the judges take?

Opinion 16-155 What steps should a judge take on learning that his/her second-degree relative has, in his/her capacity as a member of a religious institution, commenced an informal counseling relationship with a defendant who is appearing before the judge in a long-running high-profile criminal matter?

Opinion 15-148 May a judge who formerly represented a particular category of litigants in the specialized court where he/she now sits remain on the private e-mail list for a former colleague's summaries, commentary, and compilations of recent cases?

Opinion 15-106 Must a judge disclose that he/she engaged in a brief and non-substantive conversation with an attorney at a bar association function, while the attorney had a case pending before the judge? 

Opinion 15-85 May a judge sua sponte review a defendant's driving history before accepting or rejecting a proposed plea agreement? If so, must the judge disclose the contents of the driving history to the parties and counsel?

Opinion 15-47 May a judge require, as a condition of joining a treatment court program, that the defendant must agree to participate in an exercise program? If so, may the judge thereafter attend or participate in the exercise program together with treatment court participants?

Opinion 17-109 A judge who has received a copy of a disciplinary complaint letter filed by a litigant's relative against opposing counsel, but has not read the substance of the letter, has no obligation to disclose the communication. The judge may continue to preside over the case provided the judge believes he/she can be fair and impartial.

Opinion 14-140 Must a judge report his/her co-judge after learning from his/her court clerks that they overheard the co-judge engaging in ex parte, off-the-record communications with a prosecutor and his/her witness, advising them how to present certain evidence at the next phase of the case?

Opinion 13-124/13-125/13-128/13-129 (1) A judge may not meet privately with the public defender concerning implementation of a new counsel-at-arraignment program for indigent defendants unless the district attorney consents, but may meet jointly with the public defender and the district attorney to discuss such matters, and may attend an open forum concerning implementation of the program, provided that the district attorney is expressly invited to attend. (2) A judge may speak ex parte with a defendant on topics relevant to determine the defendant’s financial eligibility for the counsel-at-arraignment program, where the program is, by its terms, restricted to indigent defendants. (3) Provided that the district attorney is on notice that the counsel-at-arraignment program is in effect, the district attorney’s failure to send, designate or otherwise reasonably make available a representative to attend or participate in such arraignments, may be treated as implied consent for the judge to conduct such arraignments ex parte. (4) A judge may not accede to a public defender’s request that the judge should contact the defender’s office for representation under the counsel-at-arraignment program only in cases where bail may be imposed and incarceration is a possibility.

Opinion 11-85 A judge may not participate in a private meeting with the representatives of a local victims’ advocacy group, where the representatives’ stated goal is to educate the judge about the importance of the group and the group’s role in the community, and to establish a “mutually respectful relationship” between the organization and the court system.

Opinion 09-242 .... While this disqualification is subject to remittal, except where a party appears without counsel or if a matter is before the judge ex parte, the judge should seriously consider recusal where his/her first degree relative holds such a high ranking supervisory law enforcement position. [NOTE: Modified by Opinion 21-22(A), which abolishes the "pro se remittal" rule.]

Opinion 09-216 A judge may explain to the parties why the judge has rejected a proposed plea agreement, as long as the explanation is based upon legitimate concerns and does not involve the judge in improper ex parte communications.

Opinion 09-97 .... Because an application for a search warrant is an ex parte proceeding, remittal of the disqualification is not permitted....

Opinion 09-71 In a situation where a judge disclosed the contents of an ex parte conversation to all counsel and parties, addressed disqualification and discussed contacting the Administrative Judge for guidance, whether or not the judge initially disqualified him/herself is a factual determination to be made by the judge. A question concerning whether a judge has the authority to change his/her mind regarding a previously determined disqualification is a legal question outside of the authority of this Committee to address. A judge should exercise his/her discretion regarding whether or not the judge need disqualify him/herself after receiving an ex parte communication about a case pending before the judge.

Opinion 09-46 A judge may visit his/her third degree relative in jail and/or discuss that relative’s case with the relative’s Public Defender, as long as the judge does not have any ex parte contact with the judge presiding in the matter and does not invoke his/her judicial office or otherwise lend the prestige of his/her judicial office for his/her relative’s benefit. [NOTE: Opinion 18-120 states: "A full-time judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings, but may not participate in discussions with their retained counsel, as that constitutes the prohibited practice of law. To avoid even the appearance of impropriety, the judge must not attend meetings with counsel."]

back to top

 

Judicial Independence - Separation of Powers; Assisting/Cooperating with Prosecutors or Law Enforcement

(See e.g. 22 NYCRR 100.0[R]-[S])

Sub-Topics: Separation of Powers | Alignment with Prosecution or Law Enforcement | Impartiality and Independence Generally; Proper Role or Function of Judge

 

Separation of Powers

Opinion 22-62 (1) A town or village justice may participate in a court efficiency study ordered by the local municipality, but may not acquiesce in municipal actions that are likely to interfere with court operations or that will compromise the independence of judicial office. The judge should report any such actions to an appropriate supervising or administrative judge. (2) We cannot address legal or administrative questions, such as the allocation of authority to select, hire, assign and supervise various non-judicial personnel to work in the local justice courts, or whether a municipality may establish an appointive administrative judge position to handle certain matters.

Opinion 22-54 A part-time village justice: (1) may serve as chair of a village traffic and safety committee, where the committee's role is strictly advisory concerning matters such as the location of signs and the judge's involvement will not involve the judge in political issues or matters of great public controversy that are likely to raise reasonable questions about the judge's ability to be fair and impartial; ...

Opinion 22-45 May a town justice accept a salary increase approved by the town board partway through the judge's current term of office?

Opinion 21-183 A village justice may consent to the village’s proposed requirement that the village court clerk punch in on a time clock, as other village employees do.

Opinion 21-139    May a village justice provide the village clerk a list of summonses issued for the month, to be presented to a village board of trustees?

Opinion 21-74 Absent a legal requirement to do so, a town justice must not sign an acknowledgment form attached to the town’s sexual harassment policy, where (a) the acknowledgment contains an indirect pledge by the judge to be bound by the policy’s terms, (b) the town’s policy sets forth local procedures and reporting requirements and purports to subject all town managers, supervisors and employees to local discipline, and (c) the Unified Court System has adopted a sexual harassment policy applicable to “all judges,” which conflicts with the town’s policy.

Opinion 21-26 (1) Where a town justice and town court clerk hold ethically permissible second positions within the town government, they may attend and participate in monthly town board meetings in their non-judicial/non-court capacities and be listed on the agenda in those capacities. (2) A town justice may appear at monthly town board meetings on behalf of the town court if (a) the judge concludes it is in the best interest of the court to attend and (b) the judge is satisfied the agenda reflects the town court’s status as a co-equal branch of government, rather than a department subject to the town board’s direction and control. (3) A town justice may provide a monthly cashbook and statute summary report to the town board.

Opinion 20-166 May a town justice sign a form acknowledging compliance with an Information Resources and Technology Acceptable Use Policy adopted by the town board, where the policy purports to impose new duties and penalties for non-compliance?

Opinion 20-124 A village judge must not consent to intrusions by the village police or the executive branch on the court’s independence.

Opinion 19-158 May a town justice attend public town board meetings as an observer?

Opinion 19-124 (1) On these facts, a town justice must prohibit a town board member from spending the entire day in the court clerks' office to monitor their work....

Opinion 19-63 (1) A town justice may not agree to a private meeting with the town comptroller and town board member(s) for the express purpose of explaining and justifying an apparent decrease in revenue. (2) This prohibition does not preclude the judge from communicating with town officials concerning the amount of fines and fees collected and/or the court's budgetary needs, as permitted by statutes and prior opinions. (3) The judge may also publicly discuss the court's operations, including a decrease or increase in revenue, at a town board meeting or public forum, provided he/she (a) is careful not to cast doubt on his/her integrity, impartiality, and independence in adjudicating matters that could potentially result in revenue for the town and (b) avoids impermissible comment on any identifiable pending or impending case before him/her.

Opinion 19-20 A judge who decides in good faith he/she may legally execute and file an undertaking can do so without violating the Rules Governing Judicial Conduct.

Opinion 19-80 (1) Where a village’s sexual harassment policy purports to subject all village officials and employees to corrective action or discipline at the local level and to impose new legal duties on them, a village justice (a) may acknowledge receipt of the policy but (b) must not agree to comply with it unless the judge determines he/she is legally required to do so. (2) The justice may attend, and permit the court clerk to attend, the village’s mandatory compliance training for sexual harassment and workplace violence, where the program is educational and preventive in nature. (3) The justice may permit the court clerk to certify he/she will abide by the village’s sexual harassment policy, provided that doing so does not interfere or conflict with the Rules Governing Judicial Conduct.

Opinion 18-161 May a village justice sign a statement of compliance with the village’s recently adopted policy on non-discrimination and harassment?

Opinion 18-156 (1) A town justice need not object to the town’s video security cameras, where the cameras have no microphones or audio capabilities, do not intrude into the courtroom or otherwise improperly interfere with court operations, and do not permit monitoring inside the judge’s chambers. (2) If the town attempts to re-install a camera in the courtroom, the judge should object in writing and notify an appropriate administrative or supervising judge. (3) The judge may, if he/she chooses, petition town officials to restrict access to the video cameras and/or ask them to transfer the monitoring and control functions to court personnel.

Opinion 17-73 May a village justice acquiesce in a proposed merger of the clerical offices of the village court and the village executive branch?

Opinion 17-32 May a town judge permit his/her court clerks to certify that they will abide by the town ethics code?

Opinion 16-55 May a town judge sign a statement (1) certifying his/her "responsibility to comply with the guidelines stated in" the town ethics code and (2) acknowledging "that any willful violation of these guidelines may be cause for suspension or dismissal from Town employment or removal from Town office"?

Opinion 15-215 ... (2) May a village justice provide the village trustees with a monthly report indicating the number of cases that have been opened during that period and the total number of cases that remain pending at the end of each month?

Opinion 17-159 Under these circumstances, a town justice may respond to the town's fraud risk questionnaire about the financial and anti-fraud controls in the town court.

 

Assisting or Cooperating with Prosecution or Law Enforcement; Appearance of Alignment with Same

Opinion 22-58 A town justice may not permit a court clerk to accept outside employment as a matron with the town police department that regularly appears in the justice's court.

Opinion 22-35 A part-time judge may not serve as an assistant attorney general handling petitions for civil management of recidivist sex offenders under the Sex Offender Management and Treatment Act.

Opinion 21-189 A part-time judge may not maintain concurrent civilian employment as a dispatcher with the State University of New York police in the same county where the judge presides.

Opinion 21-184 A town justice (1) must not serve as an animal control officer, even in another municipality, but (2) may serve as a volunteer firefighter or fire police, provided these roles do not involve peace officer or police officer status.

Opinion 21-145 Where a judge has learned in the course of the judge’s official judicial duties that another court may have the current address information of an individual who has failed to pay outstanding fines, and the judge has made a good-faith legal determination concerning the lawfulness of issuing a new or amended bench warrant for the individual’s arrest for non-payment of outstanding fines using the new address, the judge may contact the other court and request the defendant’s address as information of public record.

Opinion 21-141 A village justice should not permit a local police officer to simultaneously serve in dual roles as the court security officer and as a prosecutor/witness at the same court session.

Opinion 21-106 Although it is more efficient for a court clerk to request a "long form information" from an arresting agency to support the issuance of an arrest warrant, this is a prosecutorial task and using the court's staff and database for this purpose is ethically impermissible.

Opinion 21-99 A judge may not monitor police communications on police scanners or police scanner apps for the purpose of learning who has been arrested in the judge's jurisdiction and will likely come before the judge's court, as such activity deliberately and purposefully exposes the judge to ex parte information about pending or impending cases in the judge's court, exclusively from a law enforcement perspective.

Opinion 21-95 May a judge attend, as a guest of the judge’s prosecutor spouse, the purely social aspects of a multi-day annual prosecutors’ conference, located in another part of the state?

Opinion 21-94 May a part-time attorney judge serve as a part-time prosecutor in a neighboring county?

Opinion 21-93 May a town justice allow the town’s Chief Constable to provide court security in the town court and to prosecute town ordinance violations “while also acting as a Court Officer”?

Opinion 21-83 On these facts, a town justice in a town encompassing a village with its own court may not allow the town court clerk to simultaneously serve as clerk to the village police, where (a) the two courts share the same justices and courtroom and (b) the clerical staffs share the same telephone and service window, interact throughout the work day, and cover for each other.

Opinion 20-177 A town or village justice has discretion, based upon the totality of circumstances involving the law enforcement officer assigned to their court, to permit, or not, the officer to distribute a prosecutor’s plea agreements in or adjacent to the court at the prosecution’s request. In exercising this discretion, the judge must consider factors such as the officer’s actual and apparent role in court proceedings and the need to avoid even the appearance that the court itself is serving as an intermediary for the prosecution.

Opinion 20-162 A part-time judge may serve on a subcommittee concerning the establishment of a county-wide centralized arraignment part, even where that subcommittee was created by a task force on which the judge cannot serve due to its apparent immersion in probation department programs or internal policies. The judge may also share their experience conducting off-hours virtual arraignments.

Opinion 20-165 A judge may ethically decline to participate in a district attorney’s traffic diversion program.

Opinion 20-173 A judge may not advise the police that they would approve a warrant for a higher-level charge.

Opinion 20-152 A judge has the discretion to determine whether or not to accept a guilty plea under the circumstances described.

Opinion 20-122 May a town justice adopt a procedure for handling uniform traffic tickets, whereby the court will (1) schedule the prosecution to come in first to review the tickets and “essentially fil[e] a written plea offer with the Court” by writing the plea offer on the ticket and signing it and then (2) on a later date, advise defendants that the ADA “has filed with the Court a written plea offer as follows”?

Opinion 20-183 May a town justice serve on their town’s “Police Reform and Reinvention Collaborative,” which was formed in response to the Governor’s Executive Order 203?

Opinion 20-121 It is improper for a judge to serve on a county legislature's task force, where the judge's proposed involvement seems to immerse the judge in helping the probation department implement its programs or internal policies, and the legislature has not mandated judicial branch participation.

Opinion 20-143 It is permissible for a town security officer, who is a village police officer and not a court employee, to distribute the District Attorney's plea offers to arriving defendants, provided the judge and court clerk/staff have absolutely no actual or apparent involvement in their handling or distribution.

Opinion 20-99 (1) A town or village justice court must not “collaborate” or “work with” the district attorney’s office or the local town/village prosecutor. (2) The court may nonetheless invite defense bar representatives and the appropriate prosecutorial office to discuss procedures for handling mail-in pleas on traffic infractions. (3) The court must not promote or favor mail-in pleas and/or plea bargaining over a defendant motorist’s other options, even if this is intended to mitigate the effects of the COVID-19 outbreak. The court may, however, distribute a court-prepared form (such as UCS DCJA Form 1.0) impartially listing all options for a defendant motorist and include a link to the District Attorney’s website and/or email address as a convenience to defendants.

Opinion 20-97 A court must not be in the position of advocating a negotiated plea and, thus, must not distribute the District Attorney’s “informational document” to defendant motorists or otherwise implement the DA’s procedure for facilitating defendants’ pleas to lesser charges in Vehicle and Traffic Law matters. The court may, however, distribute a court-prepared form impartially listing all options for a defendant motorist and include a link to the DA’s website as a convenience to defendant motorists.

Opinion 20-95 A part-time judge may not serve as a business agent for a correction officers' union.

Opinion 20-94 May a village justice permit the court clerk to help the village attorney prepare plea bargain letters to defendant motorists, by inputting each defendant’s name and address and the officer, docket number and charges on each letter, where the letters would be mailed out on the village attorney’s letterhead with no visible sign of the court’s involvement?

Opinion 20-88 Where a court officer’s job responsibilities include performing administrative and clerical duties for the court on days when the court is not in session, the judge may not permit a police officer to serve in this role.

Opinion 20-69 When misdemeanor-level Vehicle and Traffic Law charges are before a judge on a simplified traffic information, the judge may not ask the prosecuting agency to file a long form information so the judge can sua sponte issue a criminal summons or an arrest warrant for a defendant who failed to appear.

Opinion 20-66 A town justice may permit a court security officer to take defendants’ fingerprints within a secured area of the courthouse.

Opinion 19-163 (1) Absent a legal obligation to do so, a court must not help the prosecution meet its discovery obligations by holding and/or delivering discovery packets prepared by law enforcement agencies. (2) A town justice may not meet with the special prosecutor to discuss criminal justice reforms unless attorneys representing defense interests are also invited to attend.

Opinion 19-168 (1) A justice court may not disseminate the prosecutor’s plea offer document to defendants at arraignment. (2) When both sides are present, a judge may negotiate a plea offer with a defendant, subject to significant ethical, constitutional, and statutory limits. (3) When the prosecutor gives the defendant a written plea offer and then declines to appear in court, the judge may accept the stipulated plea offer if he/she concludes it is legally appropriate.

Opinion 19-145 A judge may not facilitate a traffic ticket plea reduction program instituted by the District Attorney’s office that would interfere with the court’s exercise of judicial review and discretion.

Opinion 19-38 A part-time judge may not serve as a fire investigator in the same county where he/she presides.

Opinion 18-76 A part-time judge (1) may not serve as a county fire investigator for the same county where he/she presides but (2) may serve as a volunteer instructor at a regional police academy sponsored by a police organization in a neighboring county, where the students are police recruits who will not commence work until after they complete the training.

Opinion 19-41 A judge may not serve on an advisory committee that makes recommendations to the District Attorney regarding a convicted offender’s application to vacate a prior conviction, even if the judge will not be personally identified in the recommendation and the DA maintains full authority over his/her response to the application before the court.

Opinion 18-26 May a town or village justice allow his/her court clerks to send notice of animal abuse convictions to the Sheriff’s Department pursuant to a county animal abuse registry law?

Opinion 17-161 A judge who had, as an assistant district attorney, prosecuted a case in which the DA’s office now seeks to reevaluate the conviction may, but is not required to, meet with attorneys seeking to vacate that conviction. The fact that the judge has met with the prosecutorial office that is currently re-investigating the case does not change the analysis.

Opinion 17-04 A judge may not attend a three-day human trafficking seminar sponsored by federal prosecutorial and law enforcement agencies, where the program will focus primarily on strategies for effective prosecution.

Opinion 16-167 May a town justice simultaneously serve as a federal prosecutor?

Opinion 15-197(B) (1) A town or village justice may not assist the District Attorney by contacting each prosecution witness, complainant and police officer concerning their upcoming court appearances. (2) Opinion 09-173 is hereby amended so that justice courts should not notify such witnesses for the District Attorney, even if the court is willing to do the same for defendants and defense attorneys on request.

Opinion 16-101 The effective date of Opinion 15-197(B) is September 1, 2016.

Opinion 15-197(A) May a town justice assist prosecutors by (a) arranging meetings with the prosecutor's prospective witnesses and/or (b) instructing such witnesses to bring lab reports or other possible evidentiary materials to court?

Opinion 15-198 May a judge attend a magistrates' association meeting held at a local correctional facility?

Opinion 16-73 May a judge and his/her family attend a defensive driving program hosted by the police department exclusively for police personnel and their families and otherwise closed to the public? Does it make a difference if they would pay their own way?

Opinion 15-217 May a judge fax a copy of the court's weekly calendar to the Department of Homeland Security for their review and determination in what defendants may be potential risks or illegal aliens, for the office to pursue?

Opinion 15-215 (1) May a village justice provide the local police department with a monthly report cataloging the number of arrests, parking tickets, traffic tickets and calls for service involving various law enforcement entities? ...

Opinion 15-184 May a judge attend a meeting with the local STOP DWI Coordinator and the Sheriff's Department to discuss methods of collecting unpaid fines from defendants sentenced on DWI convictions?

Opinion 15-56 May a judge post the procedure for resolving a traffic ticket on the Unified Court System's website?

Opinion 15-50 May a judge, in order to collect fines or surcharges he/she imposed on a defendant for parking violations, contact another court to ask that payment be made a condition of any disposition of the defendant's case in the other court?

Opinion 17-36 May a town justice serve as the town attorney for another town in the same county, where there will be no prosecutorial component to that town attorney position?

Opinion 18-147 On these facts, a judge may not participate in an athletic/sporting event organized and promoted solely by the local District Attorney’s office.

 

Impartiality and Independence Generally; Alignment with Defense or Other Interests; Proper Role or Function of Judge

Opinion 22-40 Where a court's ADR program provides for a free initial session with an approved outside neutral/mediator, optionally followed by privately-paid sessions if desired, the neutral may use courthouse space only for the free initial session.

Opinion 21-145 Where a judge has learned in the course of the judge’s official judicial duties that another court may have the current address information of an individual who has failed to pay outstanding fines, and the judge has made a good-faith legal determination concerning the lawfulness of issuing a new or amended bench warrant for the individual’s arrest for non-payment of outstanding fines using the new address, the judge may contact the other court and request the defendant’s address as information of public record.

Opinion 21-89 A judge may complete a survey from the local social services agency concerning the number of eviction petitions, proceedings and warrants filed or pending in the judge's court, so that the agency can assess the likely impacts of lifting a moratorium on evictions, but such participation is voluntary and entirely in the judge's discretion.

Opinion 21-59(A) A judge may speak at a victim impact panel in a jurisdiction other than that where the judge presides, but when the program is conducted online as a remote or virtual program, the judge must (1) advise the agency that the judge’s presentation is solely for program participants and must not be made available to a broader audience and (2) direct the agency to prohibit recording or distribution of the judge’s presentation by attendees.

Opinion 20-173 A judge may not advise the police that they would approve a warrant for a higher-level charge.

Opinion 20-158 An appellate division justice who learns that a law firm’s website features screen shots and video of the court’s oral arguments, in which the court’s justices are visible and readily identifiable, must ask the law firm to remove them. The court may, in its discretion, post a notice on its own website advising that images and videos of the court’s justices shown on the court’s website or otherwise may not be used to advance private interests or in furtherance of any commercial purpose. The court and its justices need not monitor lawyer websites but upon learning of any such misuse in the future, a justice should object and request that the offending images be removed.

Opinion 20-124 A village judge must not consent to intrusions by the village police or the executive branch on the court’s independence.

Opinion 20-107 May a town court provide only a copy of the weekly town court calendar to only the Assigned Counsel Program on an on-going basis?

Opinion 19-145 A judge may not facilitate a traffic ticket plea reduction program instituted by the District Attorney’s office that would interfere with the court’s exercise of judicial review and discretion.

Opinion 19-79 A supervising judge who received a request from the Commission on Judicial Conduct for counseling memos, corrective action plans, and personal notes related to his/her supervision of certain judges currently under disciplinary investigation is not ethically required to provide such materials voluntarily.

Opinion 19-50 A judge may not display a rainbow flag or rainbow heart sticker on the bench or in the courtroom.

Opinion 19-47 A judge may not have a court clerk enter the proposed fine on a motorist’s mail plea from a fixed schedule of fines developed by the judge -- even though the judge intends to personally review, confirm, initial and approve the fines entered by the clerk -- where the underlying fixed schedule pre-selects specific fines from the statutory range and therefore is likely to create an appearance that the judge has pre-judged certain categories of cases without individualized consideration of relevant legal factors.

Opinion 19-21 A judge may not suggest or recommend that an inmate make an application to the governor’s office of clemency nor may the judge take affirmative actions in furtherance of that suggestion or recommendation.

Opinion 19-03 (1) A judge may not email governmental agencies to obtain evidence in a disputed litigation. (2) A judge may invite attorneys to email motion papers directly to him/her, but should require that opposing counsel be copied on the email.

Opinion 18-15 A judge may not serve on a local committee to address bail reform whose membership will consist exclusively of defense representatives and community members since the organizers have declined to invite any prosecutorial, police, or law enforcement agency representatives.

Opinion 17-110 A judge may suggest alternatives to a plea agreement offered by a defendant and prosecutor, provided the judge does so non-coercively and is careful not to create an impression he/she has prejudged the case's merits. Prior opinions are modified to clarify that a judge may, subject to significant ethical, constitutional, and statutory limits, initiate, suggest, or facilitate plea agreements.

Opinion 17-101 May a judge meet privately with attorneys who represent criminal defendants concerning a "defense perspective" on the court's handling of "discovery, diversion and disposition of cases," where the meeting will expressly exclude any prosecutors?

Opinion 17-61 A judge may not intervene in a criminal defendant's appeal by advising the parties of his/her belief that he/she correctly stated the legal standard during voir dire, and that the transcript is erroneous, where the judge does not recall his/her exact words and the judge's alleged misstatement is a basis for the appeal.

Opinion 16-02 May a judge partner with, or commit the court to partner with, entities applying for a grant to create a domestic violence advocacy program? May the judge or the court participate in the ongoing administration of the resulting advocacy program?

Opinion 15-165 May a judge provide the court's internal weekly case summaries to a newspaper for publication?

Opinion 15-50 May a judge, in order to collect fines or surcharges he/she imposed on a defendant for parking violations, contact another court to ask that payment be made a condition of any disposition of the defendant's case in the other court?

Opinion 15-30 May a judge affirmatively assist a newspaper in improving the accuracy of its reporting by regularly supplying factual information to the newspaper about cases in the judge's court?

back to top

 

Application of Part 100; Authority of Advisory Committee on Judicial Ethics

(See 22 NYCRR 100.6[A].)

Incoming and Outgoing Judges; Start or End of Judicial Term

Opinion 18-16 After fully retiring from all positions in the court system, may a part-time judge who also serves as law clerk for an administrative or supervising judge appear in courts in the same county and municipality and accept assigned counsel appointments?

Opinion 16-136 May a sitting judge who will be retiring at the end of the year agree to be the guest of honor at a not-for-profit educational institution's fund-raising dinner to be held next year?

Opinion 16-63 When does a non-judge who has been appointed to judicial office become subject to the Rules Governing Judicial Conduct?

Opinion 15-01 May a non-judge who is seeking election or appointment to judicial office remain employed as a police officer until he/she takes and files his/her oath of office as a judge?

 

Legal or Administrative Questions

Opinion 22-65 Application and enforcement of the Office of Court Administration’s work schedule policies to non-judicial court personnel are primarily administrative matters, which the Committee cannot address.

Opinion 22-62 (2) We cannot address legal or administrative questions, such as the allocation of authority to select, hire, assign and supervise various non-judicial personnel to work in the local justice courts, or whether a municipality may establish an appointive administrative judge position to handle certain matters.

Opinion 22-45 May a town justice accept a salary increase approved by the town board partway through the judge's current term of office?

Opinion 22-21 Whether a judge must or may conduct an inquiry into a potential conflict of interest arising from the pending prosecution of a criminal defense attorney presents a legal question beyond the jurisdiction of this Committee.

Opinion 22-02 (1) The Committee cannot address legal/administrative issues relating to the court system’s vaccination policies, such as whether a judge may delay vaccination beyond the deadline after denial of their exemption request and use various categories of leave during the judge’s chosen delay period. ...

Opinion 21-168 Whether an administrative judge may direct a court attorney-referee to comply with a memorandum from OCA Counsel does not raise any ethical issues, but instead only legal/administrative matters, which are outside the Committee’s jurisdiction.

Opinion 21-165 Where court staff have relayed to a judge certain remarks made openly by a physician witness while waiting for the case to be called, and the judge concludes those remarks reflect gender and other bias and a lack of professionalism to a level that could directly impact the doctor’s credibility and/or might be relevant in evaluating the conclusions reached in the physician’s report, ... [w]hether the judge may rely on these remarks in a published decision is a legal question on which we cannot comment.

Opinion 21-135 May a judge conduct off-hour arraignments at a county jail, pursuant to a proposed county-wide change in arraignment procedures?

Opinion 21-119 Whether a judge may, in the exercise of discretion, reduce or waive certain Vehicle and Traffic Law surcharges regardless of a defendant's ability to pay is a question of law which this Committee has no authority to address.

Opinion 21-108 Whether or not a judge may unilaterally substitute the owner/registrant for the operator of an alleged overweight vehicle is a legal question, which is beyond this Committee's jurisdiction. Similarly, whether or not any or all of the interested parties need to request or consent to the substitution is also a legal question beyond the jurisdiction of this Committee.

Opinion 21-97 We decline to comment on the appropriate scope of disclosure of a recusing judge under Judiciary Law § 9, as this is a legal question beyond our jurisdiction.

Opinion 21-86 (2) What the judge must state on the record or in writing pursuant to Judiciary Law § 9, when confidentiality has not been waived, is a legal question we cannot resolve.

Opinion 21-56 (1) This Committee, unlike an individual judge, cannot determine the constitutionality of the enabling statute for a school bus stop-arm violation monitoring program nor whether any resulting guidelines, requirements, directives, forms, notifications or advisements emanating from that statute are lawful and thus ethically permissible. (2) A judge must comply with legal mandates. Absent a legal requirement to do so, a judge should not voluntarily comply with guidelines that are not directly enabled by the law, to the extent that they require a judge to engage in ethically impermissible conduct.

Opinion 21-54 The Advisory Committee on Judicial Conduct cannot comment on whether Part 8 of the Rules of the Chief Judge precludes a county jury board from appointing or reappointing a jury commissioner whose spouse has assumed full-time judicial office within the same county.

Opinion 21-49 Whether a judge may order the disqualification of an attorney because of an ethical conflict, instead of deciding a pending motion filed by the attorney on behalf of the attorney’s client, is a question of law which this Committee therefore has no authority to address.

Opinion 21-45 (1) Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve. (2) The judge may communicate privately with the reported attorney to advise them that a disciplinary complaint has been filed.

Opinion 20-164 Whether or not a judge may hold two part-time judicial positions in the same municipal court is a legal question beyond this Committee’s jurisdiction. If it is determined that the dual service described is legally permissible, such serving would not otherwise violate any ethics rules or principles under Part 100. If there is a legal impediment to such service, the judge may not so serve.

Opinion 19-142 Must a judge recall warrants on a defendant’s failure to pay a fine and/or surcharge due to recent revisions in the Criminal Procedure Law? May the judge enter a civil judgment for the unpaid amount?

Opinion 19-124 ... (2) A town justice must attend the town's sexual harassment prevention training program if legally required to do so.

Opinion 19-117 If authorized by law, a town or village justice may notify criminal defendants of court appearances without simultaneously notifying defense counsel.

Opinion 19-45 A support magistrate may report a litigant’s apparently criminal conduct to law enforcement but is not ethically required to do so. Whether and how he/she may do so in compliance with applicable statutes and regulations raises a legal question, not one of judicial ethics.

Opinion 19-35 Where an attorney who practices in a specialized part manifests extremely rude, malicious, and belligerent behavior that, if true, appears to raise serious concerns about the attorney’s fitness to practice law: (1) the propriety of transferring the attorney’s cases to another venue is a legal or administrative question the Committee cannot address; ...

Opinion 19-20 A judge who decides in good faith he/she may legally execute and file an undertaking can do so without violating the Rules Governing Judicial Conduct.

Opinion 19-19 If a judicial candidate determines he/she is legally permitted to repay his/her personal loan after the election, it is ethically permissible for him/her to use his/her remaining unexpended campaign funds, raised before election day, to do so.

Opinion 19-06 Whether a part-time town justice, who is also a US Air Force Reservist, may continue in office as judge while on extended military orders outside New York raises legal questions the Committee cannot address.

Opinion 18-171 (3) Whether the judge may hold a hearing to determine if a party is attempting to engage in judge-shopping presents a legal question beyond our jurisdiction. 

Opinion 18-139 (2) We decline to answer legal questions and/or questions about a co-judge’s conduct.

Opinion 18-138 (1) A judge with personal knowledge of relevant facts may testify as a fact witness in an attorney disciplinary proceeding, either voluntarily or pursuant to a subpoena. (2) The judge may provide a written factual statement at the request of the attorney’s lawyer, but its admissibility is a legal question.

Opinion 18-73 The Committee cannot determine whether judges have the legal authority to introduce new steps or procedures for defendants who plead guilty by mail under Vehicle and Traffic Law 1805, as this presents a strictly legal question.

Opinion 18-49 Whether a judge is authorized to act on certain declarations of delinquency from the probation department raises primarily legal questions beyond the Committee’s jurisdiction. However, a judge who makes a good-faith legal determination concerning his/her legal authority to act on these submissions necessarily acts ethically, even if the decision is reversed on appeal.

Opinion 18-45 What are the ethical obligations, if any, of a judge who believes his/her administrative judge’s order assigning him/her to preside in a particular court is legally insufficient?

Opinion 18-25 (1) A judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority. (2) The Committee cannot address legal questions such as whether or how a judge, in his/her capacity as a firearm licensing officer, may consider an applicant’s request to lift the suspension of a firearm license or which persons must be notified and given an opportunity to participate.

Opinion 17-176 Before seeking ethics advice on how to interact with unrepresented litigants, a New York City Housing Court judge should first consult with his/her supervising or administrative judge concerning applicable policies, procedures, and resources.

Opinion 16-159 (1) A judge who is dissatisfied with an attorney’s explanation of the propriety of his/her conduct in connection with a proposed default divorce decree must determine, based on the facts and circumstances known to the judge, whether there is a substantial likelihood that the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. (2) If the judge determines in good faith that he/she is legally permitted and/or legally required to sign the decrees, he/she may do so without violating the Rules Governing Judicial Conduct, assuming he/she can be fair and impartial and is not otherwise disqualified from presiding in matters involving the attorney. The Committee suggests the judge consult with an administrative judge for assistance in navigating any applicable legal or administrative issues.

Opinion 16-105 A judge subject to article VI, section 20 of the state constitution may not sign a separate oath of office for a county legislature’s law-related advisory board without an opinion from OCA’s Counsel’s Office advising the oath’s execution is legally permissible.

Opinion 16-56 (1) Unless a judge is required by law or rule to perform marriages, a judge may adopt a policy to decline to perform all weddings. (2) A judge who declines to perform weddings may permit court staff to refer couples to another incumbent public official who is authorized to solemnize marriages.

Opinion 16-55 (1) Absent a legal requirement, a town justice must not sign a statement (a) acknowledging an obligation to comply with a town ethics code, or otherwise agreeing to be bound by such code where it is more stringent than the Rules Governing Judicial Conduct, or (b) acknowledging that willful violation of the town ethics code may be a basis for suspension, dismissal, or removal, or otherwise agreeing to allow the town board remove, suspend, or dismiss the judge. (2) A judge who determines in good faith that he/she is legally required to sign such a statement may do so without violating the Rules Governing Judicial Conduct.

Opinion 16-52 The Committee cannot comment on any legal questions. However, if controlling law permits voter registration forms to be made available at court facilities, it is ethically permissible to do so in a strictly neutral, non-partisan and informational manner, subject to any applicable legal requirements.

Opinion 16-42 Whether a judge may sign a final decree of judicial settlement pursuant to SCPA § 2602(1)(b), following disqualification of the judge who issued the underlying decision, is a legal question the Advisory Committee cannot address.

Opinion 16-08 Whether a full-time City Court judge may accept a temporary appointment as a Family Court judge is a legal issue the Committee has no authority to resolve.

Opinion 15-232 The Committee cannot comment on legal questions, such as whether a judge may, on his/her own initiative and before the parties’ first appearance, request and review grand jury minutes and/or discovery materials produced to the defense. Should the judge determine such conduct is legally permitted, however, the judge must be careful to avoid any impermissible ex parte communications

Opinion 15-220 The Committee cannot comment on any legal questions. However, if applicable law permits judges to delegate authority, to accept guilty pleas and set fines, to court clerks who serve in a municipality’s traffic violations bureau, then it would also be ethically permissible for the judges to delegate that authority under the applicable statutory scheme.

Opinion 15-200 Whether a full-time judge may serve in the U.S. Army Reserve Judge Advocate General Corps raises legal questions the Committee may not address.

Opinion 15-188 (1) The Committee cannot suspend the Rules Governing Judicial Conduct or issue legal opinions interpreting the state and federal constitutions.

Opinion 15-74 The proper format of the judge’s response to a subpoena is a legal or procedural question which the Committee cannot address.

Opinion 15-47 (1) Whether a judge may require, as a condition of joining a treatment court program that the individual must agree to participate in an exercise program raises primarily administrative and/or legal questions which the Committee cannot answer.

Opinion 14-195 Whether a part-time judge may continue to practice law, while he/she is serving temporarily as a full-time judge pursuant to Uniform City Court Act §2104(e)(2), depends on whether the judge is legally a full-time judge during that period. It thus presents a legal question beyond the jurisdiction of the Advisory Committee on Judicial Ethics.

Opinion 14-159 Whether a judge may use his/her official court mailing address, telephone number and e-mail address to conduct bar association business is primarily a question of administrative policy.

Opinion 14-109 Will the Committee reconsider Opinion 03-129, which states that a judge who is constitutionally barred from holding "another public office or trust" (NY Const art VI §20[b]) may not serve as a notary public; and, therefore, may not carry petitions to be designated by other parties in his/her re-election efforts?

Opinion 14-79 May a judge adopt a policy requiring parties to an action to appear before the judge for allocution and explanation before entering into an out-of-court stipulation, when one of the parties is unrepresented?

Opinion 14-34 Under the circumstances presented, where the judge has made a good-faith interpretation of governing law concerning the appointment of counsel for indigent defendants, it would be inappropriate for the judge to defer to an inconsistent legal interpretation offered by another branch of government which would require the judge to participate in conduct the judge has concluded is unlawful.

Opinion 14-01 Whether a judge may preside over an arraignment, in which a defendant is not represented by counsel, raises primarily legal questions; however, if a judge acts in conformity with governing law the judge will not violate the Rules Governing Judicial Conduct.

Opinion 13-50 If it is legal for an administrative law judge of a traffic bureau to accept a guilty plea from a pro se defendant that includes incarceration, then it is also ethical for a part-time judge to do so in his/her separate capacity as an administrative law judge.

Opinion 13-48 Must a village justice enforce a local law which he/she believes to be lacking in legal standing and precedent"?

Opinion 12-115 May a judge who is a retired Law Enforcement Officer carry a concealed firearm in accordance with the Law Enforcement Officers Safety Act?

Opinion 12-68 (2) Whether a judge must review the affidavit a defendant must submit to the District Attorney when requesting a reduction of an alleged Vehicle and Traffic Law violation before ruling on the proposed plea agreement is a question of law that is beyond the Committee's jurisdiction.

Opinion 11-92 (2) Whether a part-time town judge [in a court with one judge and two court clerks] may also be appointed to serve as a co-court clerk is a question of law that is beyond the Committee’s jurisdiction. 

Opinion 11-87 (1) Unless a judge is required by law to perform marriages, a judge may adopt a policy of performing marriages for friends and relatives only or may decline to perform all marriages. (2) Whether a judge may adopt a policy with respect to performing marriages that distinguishes between same-sex and opposite-sex couples raises primarily legal questions; however, if a judge acts in conformity with governing law the judge will not violate the Rules Governing Judicial Conduct. [Note: Some previously unsettled legal issues relating to statutory and constitutional interpretation were resolved by the United States Supreme Court. See Obergefell v. Hodges576 U.S. 644 (2015).]

Opinion 11-17 A full-time judge, who is also an adjunct professor at a community college and member of the adjunct faculty association, may fully engage in all legal activities of the faculty association. The judge should not participate in a strike which violates the Taylor Law.

Opinion 11-09/11-12 (1) A judge may conduct after-hours arraignments in a public area of a police facility if there are valid security reasons to do so and if holding such proceedings at the police facility rather than the local court facility is not in violation of law. (2) A judge may conduct after-hours arraignments in other areas that are open to the public, such as outdoors, only if such locations are legally permitted and administratively approved and if it is likely that the judge will be able to maintain order and decorum. (3) Other questions relating to where a judge may conduct after-hours arraignments are primarily legal and administrative in nature.

Opinion 10-170/11-03 Whether a judge may permit a lay complainant to prosecute an alleged criminal violation is a question of law which is beyond this Committee’s jurisdiction. If a judge determines that the district attorney’s implicit or explicit delegation of authority to prosecute a particular matter is not lawful, then the judge should decline to preside over such matters. But, if a judge determines that such delegation is lawful, then the judge may preside in such matters, although the judge must remain fair and impartial and may not provide either side with guidance on procedural or substantive issues.

Opinion 10-201 (5) The question of whether a court attorney may pay a “much reduced rate” for private legal services received during his/her employment with the courts raises questions of non-judicial ethics that are beyond this Committee’s jurisdiction.

Opinion 10-196 A judge may ask a criminal defendant any questions that the judge has determined are legally permissible or legally required, including questions about a defendant’s immigration status, but the judge should not accede to the district attorney’s request that the judge conduct plea allocutions in a particular manner and should not distribute notices furnished by the prosecutor to criminal defendants.

Opinion 10-193 (2) A full-time judge may manage real estate as the sole member of the limited liability corporation that owns the property. To the extent legally permitted, the judge may appear pro se on behalf of the limited liability corporation unless the corporation is required by law to appear by or through counsel.

Opinion 10-185 Whether a part-time judge may take an extended vacation is an administrative question to be determined by the appropriate administrative judge.

Opinion 10-154 Unless otherwise prohibited by law, the village justice may have the Village Clerk assist the village court clerk in verifying court bank deposits.

Opinion 10-142 (2) The propriety of a prosecutor’s exercise of discretion in deciding whether and how to prosecute offenses raises legal issues beyond the Committee’s jurisdiction. 

Opinion 10-124 (1) Absent special circumstances that would create an appearance of impropriety, a part-time village justice may, to the extent it is legally permissible to do so, mandate that youthful offenders of Vehicle and Traffic laws attend a specific defensive driving program which is co-sponsored by a not-for-profit entity and a governmental agency and is specifically geared to offenders in that age group. 

Opinion 10-26 A judge who believes that he/she can continue to preside in a judicial proceeding “fairly and impartially” need not disqualify him/herself after a court employee, without authorization, accessed the recording of a confidential (Lincoln) hearing held during such proceeding. However, if it is legally permissible to do so, the judge should disclose that the incident occurred to the adult parties and the attorneys involved in the judicial proceeding.

Opinion 09-164 What should a judge do on realizing that they may have been without jurisdiction to hear and adjudicate certain proceedings?

Opinion 09-140 A part-time village justice is prohibited by law from serving in both an elective and an appointive village office.

Opinion 09-137 Whether a judge who receives a defendant's plea of "not guilty" by mail to a Vehicle and Traffic Law charge may schedule a pre-trial conference is a question of law, not ethics, and thus beyond the Committee's jurisdiction.

Opinion 09-130 Do the Rules Governing Judicial Conduct address whether a judge may issue warrants or bench warrants in certain "relatively minor matters," including non-misdemeanor Navigation Law matters, which may or may not carry a jail sentence?

Opinion 09-124 May a sitting judge seek to qualify and carry a firearm within the guidelines of the Law Enforcement Officers Safety Act of 2004?

Opinion 09-96 A judge may consider a defendant’s criminal record and/or driver’s abstract during an arraignment for the purpose of setting bail if he/she is authorized to do so by law or if both the defense and prosecution have access to the same information. If a defendant’s criminal history and/or driving record is otherwise available, the judge should give copies to the defendant’s counsel or, if the defendant appears without counsel, to the defendant.

Opinion 09-76 Must judges assign counsel for unlawful possession of marijuana cases where the defendant cannot afford counsel?

Opinion 09-71 A question concerning whether a judge has the authority to change his/her mind regarding a previously determined disqualification is a legal question outside of the authority of this Committee to address. A judge should exercise his/her discretion regarding whether or not the judge need disqualify him/herself after receiving an ex parte communication about a case pending before the judge.

Opinion 09-60 Assuming it is legal to do so, a judge who is subject to §36.1(a)(11) of the Rules of the Chief Judge concerning appointments by the court may permit a public administrator who practices law with the judge’s former campaign treasurer to remain in office and is not required to disclose the public administrator’s relationship to the judge’s former campaign treasurer.

Opinion 09-49 A judge who learns during a sealed grand jury proceeding that the attorney who was the subject of the proceeding intends to report his/her own misconduct to the appropriate lawyer disciplinary authority need not take any further action if he/she can verify that the attorney has done so. If the attorney does not report his/her own misconduct, the judge must determine whether he/she may legally disclose information he/she learned during the sealed grand jury proceedings. If not, then the judge has no further disciplinary responsibility under the Rules Governing Judicial Conduct. If the judge may legally disclose the information, he/she then must determine whether the conduct constitutes a substantial or nonsubstantial violation of the Rules of Professional Conduct and thereafter take appropriate action.

Opinion 09-34 The Advisory Committee on Judicial Ethics is authorized to issue advisory opinions concerning one or more issues related to ethical conduct or proper execution of judicial duties or possible conflicts between private interests and official duties. The Committee, therefore, has no authority to respond to a question of law concerning the propriety of referring a juvenile delinquent to a local faith-based organization as part of the disposition of a case.

Opinion 09-24 Must judges assign counsel for unlawful possession of marijuana cases where the defendant cannot afford counsel?

Opinion 09-23 May a Court of Claims judge sit as an arbitrator in Small Claims Court, notwithstanding Court of Claims Act §3?

Opinion 09-22 Are the Rules Governing Judicial Conduct implicated by the District Attorney's policy authorizing any village police officer to prosecute vehicle and traffic tickets in the village court, whether or not the particular officer who appears to prosecute the ticket actually wrote the ticket?

Opinion 09-13 Whether a judge must advise a defendant that a sentence imposed upon conviction after trial may include incarceration, and whether a judge is obligated to ensure that a defense attorney has so advised his/her client, is a question of law the Committee cannot answer. If the law permits or requires a judge to do either, he/she must do so impartially, without coercing the defendant to accept a negotiated plea.

 

Past Conduct; Conduct of Third Parties; Hypothetical or Speculative Questions

Opinion 21-171 (1) The Committee does not answer hypothetical or speculative questions.

Opinion 21-169 The Committee does not answer hypothetical or speculative questions.

Opinion 21-66 We cannot comment on a pending investigation of the Commission on Judicial Conduct, even at the Commission’s request.

Opinion 21-10 The Advisory Committee on Judicial Ethics cannot comment on past conduct.

Opinion 20-170 The Committee does not answer hypothetical or speculative questions.

Opinion 19-17 The Committee is authorized to answer questions from judges about their own conduct, and, therefore, we do not answer hypothetical or speculative questions.

Opinion 18-139 (2) We decline to answer legal questions and/or questions about a co-judge’s conduct.

Opinion 17-140 Where a prosecutor has provided certain Brady materials involving a particular police officer in one case, what should the judge do in a hypothetical future case involving the same police officer, if the prosecutor fails to make the same disclosure?

Opinion 17-64 May the Committee comment on past conduct?

Opinion 17-37 The Committee declines to answer hypothetical questions.

Opinion 16-94 (4) As no constitutional convention has been approved or scheduled at this time, questions concerning permissible campaign activities for a judge who wishes to become a constitutional delegate are hypothetical and premature.

Opinion 16-85 A judge may not engage anonymously in otherwise prohibited political activity, such as publishing partisan political literature. The Committee cannot answer additional questions about the judge’s public expression, as they are vague, subject to multiple factual variations.

Opinion 09-32 May the Committee comment on the obligations of the inquirer's co-judge?

Disclosure by Inquiring Judge of Advisory Committee Opinions 

Opinion 21-165 (3) The judge may, in their sole discretion, disclose that they sought ethical advice in this matter.

Opinion 21-131 (2) The inquirer may share this or other ethics opinions with counsel.

back to top

 

New Judges

(See also "Full-Time Judges; Winding Down One's Law Practice; Providing Legal Advice to Family" and Winding Down - Opinion Digests (December 2018) [PDF with links])

Opinion 22-39 (1) A judge-elect who will preside in many cases involving a city may permit the Corporation Counsel to administer their oath of office. 

Opinion 22-24(A) On the facts presented, a new full-time judge may continue to negotiate with their former law firm regarding the disposition of a limited liability company in which they both own a 50% interest, as long as negotiations are in good faith by both sides and the judge continues to take no active role in management of the building or operation of the business.

Opinion 22-18 May a part-time lawyer judge complete the Part 36 assignments they received as a receiver and referee before assuming the bench, even though they may not accept any new Part 36 assignments?

Opinion 22-15(A) A new full-time judge may (1) maintain a mailbox at their prior office address; (2) dispose of wills prepared while an attorney, as permitted by law; and (3) be reimbursed for expenses incurred before assuming the bench while handling a matter as an attorney.

Opinion 22-12 A new town judge, who can no longer represent an existing client on a nearly completed matter that originated in the town court, may agree to pay the successor attorney a portion of the original retainer.

Opinion 21-132 (1) A part-time lawyer judge who was assigned as a special prosecutor before assuming the bench, and did not seek to withdraw or be relieved as special prosecutor on assuming the bench, may request and accept permissible legal fees and disbursements for prosecutorial work performed before assuming the bench, but may not accept compensation for prosecutorial work performed after assuming the bench. The judge must take reasonable steps to amend or supplement any previously submitted vouchers as needed and to return any compensation already received for prosecutorial work erroneously performed after assuming judicial office.

Opinion 21-131 (1) A judicial candidate may not enter into a contract with a law firm in which the candidate agrees to recuse in certain matters if elected.  (2) The inquirer may share this or other ethics opinions with counsel.

Opinion 21-17 Where a new full-time judge was previously a law firm partner and took a loan from the firm’s 401(k) profit sharing plan, the judge may remain in the plan temporarily in order to pay back the loan and receive the plan’s annual employer matching contribution based on the judge’s prior legal work and earnings. The judge must continue to disqualify from matters involving the former firm and the judge’s former partners and associates during this period and for two years after the financial relationship completely terminates. 

Opinion 21-13 A new full-time judge may engage in activities designed to wind down their prior law practice and collect previously earned legal fees, including billing an assigned counsel program for services “as an attorney” and complying with the requirements of a state administrative agency to obtain payment on previously awarded legal fees.

Opinion 20-204 On assuming full-time judicial office, must a new judge have their name removed from the glass of the shared suite in which they previously practiced law? Must they relinquish the office of notary public? May they collect a legal fee on a matter that is being handled by another attorney, where any legal fees are contingency-based and the judge is “expecting a fee once a settlement is reached”?

Opinion 20-178 May a full-time judge, who served as a referee in foreclosure before assuming the bench, continue to hold the monies in escrow pending a court order directing their release?

Opinion 19-148(B) (1) A judge may collect fees for legal work done before assuming full-time judicial office, only if the fee arrangement is otherwise proper....

Opinion 19-125 A part-time attorney judge may continue to represent a client as guardian pursuant to a Part 36 assignment made before the judge assumed the bench. Where the appointment is a continuing one, the representation need not be completed within one year.

Opinion 18-22 A new full-time judge who previously served as guardian ad litem in a federal case may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem; (2) respond to the federal judge’s questions about whether a new guardian ad litem should be appointed; and (3) appear pro se concerning his/her fees for work previously performed as guardian ad litem.

Opinion 18-17 May a part-time justice (1) complete his/her prior Part 36 assignments that he/she received prior to taking the bench, including as a referee in foreclosure, and (2) accept new assignments as a referee in foreclosure matters. [Note: Point #1 modified by Opinion 19-125.]

Opinion 15-128 May a new full-time judge, whose former law partner is temporarily unavailable for medical reasons, continue to accept and deposit fees, issue checks to clients and the firm and pay expenses as necessary to wind up the law firm's affairs until the partner recovers or new counsel is hired? May the judge use law firm letterhead after assuming judicial office to explain the circumstances to judges presiding over his/her former partner's cases and to request adjournments as needed?

Opinion 15-126 (1) May a full-time judge request and accept fees for work he/she performed before assuming the bench? (2) May a judge preside in matters where his/her former law partner appears as counsel? (3) May a judge appoint his/her former partners to fiduciary positions? (4) May a judge who previously served as counsel to the public administrator preside over cases in which the public administrator appears?

back to top

Media Relations; Participation in Interviews or Documentaries

Opinion 21-133  Where a part-time lawyer judge is representing a client on a litigated matter, may the judge respond to media requests for information and comment on that matter?

Opinion 21-24 On these facts, a judge may not participate in an interview with a local news station regarding the experiences of the judge’s first-degree relative at a local nursing home.

Opinion 20-215 A full-time judge may participate, without compensation, as an interviewee and consultant for a commercially-produced documentary concerning a case the judge prosecuted several decades ago, provided the case has completely terminated and no related proceedings are pending or impending.

Opinion 20-81(B) A part-time judge may appear as legal commentator/analyst on television or online streaming shows, provided he/she does not comment on any pending or reasonably foreseeable cases in the United States or its territories.

Opinion 20-59 May a full-time judge publish his/her autobiography, and name specific out-of-state doctors or medical entities the judge credits for helping him/her recover from life-threatening medical conditions? May the judge participate in an audiotaped interview and radio program, organized by the publisher, to promote the book?

Opinion 20-49 A full-time judge may volunteer as a disc jockey for a not-for-profit college radio station.

Opinion 19-133 (1) A part-time attorney judge who is opposing a motion to remove him/her as an attorney in a pending case may respond to media questions concerning the motion in his/her capacity as an attorney, provided he/she makes no reference to his/her status as a judge. (2) If the judge believes governing law prohibits him/her from providing certain details concerning the litigation, he/she may say so publicly.

Opinion 19-120 (1) A full-time judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service, and may do so by (a) writing and submitting letters, articles, or editorials to newspapers and other publications....

Opinion 19-101 A full-time judge who has written a law book may permit his/her volunteer assistant to reach out to a relative’s contact at a newspaper for the legal community to ask if they would be interested in reviewing or mentioning the judge’s book.

Opinion 18-59 May a judge be interviewed by a news station about an alternatives to incarceration program?

Opinion 17-163/18-03/18-21 Subject to certain limitations, a full-time judge may, without compensation, (1) participate in an interview for a commercially produced television documentary series concerning a case he/she prosecuted over a decade ago, provided the case has completely terminated and no related proceedings are pending or impending; (2) appear occasionally on a commercially produced news program hosted by his/her first-degree relative, to share family-friendly jokes or riddles; and (3) appear on a commercially produced news segment in honor of the achievements of individuals who share a particular racial, ethnic, or cultural background or heritage. In each instance, the judge need not conceal his/her identity as a judge or his/her participation in the program but should not personally promote the program to the public at large.

Opinion 17-84 May a judge give a regionally exclusive newspaper interview about his/her life story, religious activity, career path and work-life balance?

Opinion 16-26 A Court of Claims judge has no duty to disclose or disqualify him/herself from cases involving the Attorney General’s office, based only on media efforts to link the judge and his/her spouse with a person whom the Attorney General is investigating.

Opinion 15-182 ...  Although the judge may permit a commercial television producer to make a television series based on the judge’s book for a commercial television station, the judge may not serve as a host for the series or be interviewed for the series.

Opinion 15-165 In these circumstances, a judge may not provide the court’s internal weekly case summaries to a newspaper for publication.

Opinion 15-100 A judicial association may respond to public criticism of a judge for making statements about a juror in a written decision, provided that the response does not involve comment on a pending or impending proceeding, and subject to certain additional limitations.

Opinion 15-30 A judge should not affirmatively assist a newspaper in improving the accuracy of its reporting by regularly supplying factual information to the newspaper about cases in the judge’s court.

Opinion 15-24 May a judge agree to be profiled in a local, bimonthly publication and featured on its cover where the resulting article would address the judge's legal career, current judicial position, personal life and possibly prior public service?

Opinion 14-99 What topics is a judge ethically permitted to discuss on a local radio station and public access shows?

Opinion 14-37 Is it ethically permissible for a judge to write articles about legal procedure for quarterly publication in a local newspaper with limited circulation?

Opinion 14-08 Is it ethically permissible for a judge to participate in a local public radio station's on-air fund drives?

Opinion 13-31 May a judge agree to be interviewed for an article in the local weekly newspaper about the judge's background as a police officer, prosecutor and judge?

Opinion 12-146 A judge may submit the judge's decision in a criminal case to a local newspaper for publication, subject to any applicable statutory provisions concerning sealed records, after the judge files the decision with the clerk of the court and without commenting about the decision in any way.

Opinion 12-112 (1) May a judge be a guest of honor or honoree at a small local newspapers' non-fund raising event and accept the newspaper's Award in Political Leadership? (2) May a judge assist a not-for-profit entity in organizing a non-fund raising community event honoring successful women?

Opinion 11-154/11-155 Subject to appropriate administrative approvals, a full-time trial court judge may permit a for-profit video production company to film regular court proceedings for a documentary, and may permit a local public access television channel to video selected court hearings for broadcast at a later time, as long as the judge will merely perform his/her regular judicial duties while being filmed, will not receive compensation from the filming company or broadcaster, and will not allow the filming process to interfere with the court’s proceedings.

Opinion 11-138 A judge may participate in an interview with a graduate student in connection with the student’s dissertation research on a particular legal issue, and answer questions about the judge’s judicial experience with a form of court-ordered treatment, provided the judge does not comment on a pending or impending proceeding, does not disclose any non-public information acquired in a judicial capacity and does not express any predisposition to decide matters in a certain way.

Opinion 11-100 A part-time judge may be employed full-time as a news reporter, subject to certain limitations. As for subject matter, a reporter/judge may not cover cases pending or impending in the United States or its territories nor cover politically sponsored events.

Opinion 11-37 A judge who accepts a previously unannounced award at a charitable fund-raiser may thereafter also be included in a photograph of award recipients at the event and need not object to publication of the photograph in a local newspaper.

Opinion 10-206 A judge may be interviewed for a documentary film produced by a not-for-profit organization about a well-known former prosecutor who is a former colleague of the judge, provided that the judge does not discuss any matter that is pending or impending in any court in the United States or its territories, and further provided that the judge’s comments do not cast reasonable doubt on the judge’s capacity to act impartially.

Opinion 10-131 May a judge answer questions on a survey and participate in a follow-up interview on the topic of “Justices’ Perspectives on the Changes in Their Courts”?

Opinion 10-102 A judge may appear monthly on a local television news broadcast to answer questions about a predetermined topic relating to the criminal justice system, subject to certain limitations.

Opinion 09-187 May a full-time judge appear in an episode of a television series?

Opinion 09-98 May a judge appear one time on a weekly radio show hosted by a local attorney, who regularly appears before the judge, to explain what the Integrated Domestic Violence Court is and how it operates in the judge's county?

Opinion 09-83 May a part-time City Court judge ... (2) participate in a local newspaper interview regarding their tenure on the bench?

Opinion 09-37 A judge may be interviewed and photographed for an on-line commercial magazine article about personal grooming decisions. The judge should not endorse any particular products, and must otherwise comply with the Rules Governing Judicial Conduct in participating in the interview.

Opinion 09-05 May a judge appear on a radio program in which the participants will discuss the Rotary Club’s humanitarian and public service projects?

back to top

Diversity and Inclusion; Avoiding Bias and Prejudice

Opinion 22-49 After a judge admonished an attorney on the record for an inappropriate attempt at humor referencing the client's ethnicity or national origin, the judge has discretion to take further action, but is not required to do so.

Opinion 21-182 A judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project, and may meet as a group with other participating judges and committee members to receive feedback from the volunteer observers, but may not meet privately with volunteer observers to discuss their feedback on the judge’s own court sessions.

Opinion 21-114(A) A judge may disclose the judge’s own preferred gender pronouns in the judge’s email signature block and during a virtual proceeding in which the judge presides.

Opinion 21-81 A judge who belongs to a judicial association (1) may participate in a vote on a resolution not to hold the association’s conferences in certain locations, based on local laws affecting individuals with particular sexual orientations, gender identity, or gender expression and (2) need not resign from the association merely because the resolution passes.

Opinion 21-74 Absent a legal requirement to do so, a town justice must not sign an acknowledgment form attached to the town’s sexual harassment policy, where (a) the acknowledgment contains an indirect pledge by the judge to be bound by the policy’s terms, (b) the town’s policy sets forth local procedures and reporting requirements and purports to subject all town managers, supervisors and employees to local discipline, and (c) the Unified Court System has adopted a sexual harassment policy applicable to “all judges,” which conflicts with the town’s policy.

Opinion 21-55 May a part-time judge serve on a committee to investigate sexual harassment claims against an individual who is a member of the same worldwide not-for-profit service organization?

Opinion 21-43 May a judge sit on the board of a local human rights commission, which is involved in investigating, conciliating, and adjudicating employment, housing, public accommodation and credit discrimination claims?

Opinion 21-09 Where a party or attorney has advised the court that their preferred gender pronoun is “they,” a judge may not require them to instead use “he” or “she.”

Opinion 20-202 After receiving any administrative approvals that may be required, judges may collaborate with the Historical Society of the New York Courts on a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.

Opinion 20-155 May a full-time judge form a for-profit company to provide instruction and education on topics involving diversity, equity and inclusion?

Opinion 20-131 A judge who was formerly a prosecutor may speak to an ethnic/cultural affinity group, made up of employees at the prosecutor’s office, about the judge’s experience as a prosecutor, the judge’s career path, and the court system’s adaptation to virtual operations.

Opinion 20-128 On these facts, it is the obligation of the judge who wishes to be a member or leader in a not-for-profit entity to determine if it invidiously discriminates, engages in partisan political activity, or will insert the judge unnecessarily into public controversy.

Opinion 20-96 A part-time judge may serve on a county executive’s working group to review training at the county police academy, where the group’s membership is balanced and its goal is to help reduce and eliminate implicit bias. The judge must, however, be mindful of the need to maintain public confidence in his/her impartiality and must take particular care not to comment on any pending or impending case in the United States or its territories.

Opinion 19-138 A judge may not participate in a conference call organized by a federal legislator to help plan an event on Capitol Hill for individuals of a particular ethnic/cultural heritage, where the program topics are legislative and political in nature.

Opinion 19-124 ... (2) A town justice must attend the town's sexual harassment prevention training program if legally required to do so.

Opinion 19-115 A judge may participate in an academic study on judicial diversity in state courts but must abide by generally applicable limitations on speech and conduct, including the public comment rule, and must neither disclose any non-public information acquired in a judicial capacity nor express a predisposition to decide matters in a certain way.

Opinion 19-80 (1) Where a village’s sexual harassment policy purports to subject all village officials and employees to corrective action or discipline at the local level and to impose new legal duties on them, a village justice (a) may acknowledge receipt of the policy but (b) must not agree to comply with it unless the judge determines he/she is legally required to do so. (2) The justice may attend, and permit the court clerk to attend, the village’s mandatory compliance training for sexual harassment and workplace violence, where the program is educational and preventive in nature. (3) The justice may permit the court clerk to certify he/she will abide by the village’s sexual harassment policy, provided that doing so does not interfere or conflict with the Rules Governing Judicial Conduct.

Opinion 19-50 A judge may not display a rainbow flag or rainbow heart sticker on the bench or in the courtroom.

Opinion 18-161 May a village justice sign a statement of compliance with the village’s recently adopted policy on non-discrimination and harassment?

Opinion 18-36 A judge may promote diversity in courtroom participation by including a statement in his/her part rules encouraging litigators to give their knowledgeable junior colleagues more speaking and leadership roles in his/her courtroom.

Opinion 17-179 A full-time judge who is the president of an ethnic bar association may participate as the bar association president in a meeting with a DA-elect’s transition team on issues involving the law, the legal system and the administration of justice, subject to certain conditions and limitations.

Opinion 17-163/18-03/18-21 Subject to certain limitations, a full-time judge may, without compensation, ... (3) appear on a commercially produced news segment in honor of the achievements of individuals who share a particular racial, ethnic, or cultural background or heritage. In each instance, the judge need not conceal his/her identity as a judge or his/her participation in the program but should not personally promote the program to the public at large.

Opinion 17-11 (1) It is a judge's obligation to determine whether a lay organization for men of a particular ethnicity and religion engages in invidious discrimination. 

Opinion 16-151 (1) A judge may establish a judicial mentoring program to help promote diversity in the judiciary, which will pair sitting or retired judges with attorneys who wish to seek judicial office. (2) A mentor judge may review and comment on an attorney mentee’s application to a judicial screening panel, and may share his/her own experience in going through the elective or appointive process to become a judge, but may not contact political party leaders or others on the mentee’s behalf. (3) The mentor judge must exercise particular caution to avoid any perception of involvement in impermissible political activity both before and after the mentee publicly declares his/her candidacy for election to judicial office. Therefore, the mentor judge must not advise his/her mentee on campaign strategy, campaign literature or other outreach to voters or political leaders. (4) A fully retired judge, who is not designated as a judicial hearing officer or otherwise performing judicial functions with the court system, is not subject to these limitations.

Opinion 16-34 May a full-time judge participate as one of several panelists and mentors at a commercial entity's free luncheon for young people of a particular minority group, when commercial entity has assured the judge in writing that the event is entirely philanthropic, the judge's participation will not be used for promotional purposes, and no commercial activity whatsoever will take place at the event?

Opinion 15-183 What are a judge's disciplinary obligations after learning that a police report contains a defendant's unconfirmed, but also un-denied, claim that an assistant public defender directed a racial/ethnic slur toward the defendant?

Opinion 15-179 May a judge give a presentation on recognizing and reducing racial prejudice to an audience consisting exclusively of attorneys who represent a certain category of litigants in a specialized court?

Opinion 14-83 What avenues of relief may a judge ethically pursue in response to actions the judge believes to be harassing and bullying?

Opinion 12-121 Is there an ethically permissible way for attorneys, who represent a certain category of petitioners in name change proceedings, to share their clients’ concerns with members of the bench?

Opinion 11-87 (2) Whether a judge may adopt a policy with respect to performing marriages that distinguishes between same-sex and opposite-sex couples raises primarily legal questions; however, if a judge acts in conformity with governing law the judge will not violate the Rules Governing Judicial Conduct. 

Opinion 10-144 May a judge be a member of the board of directors of a non-profit organization that provides social services and resources addressing issues related to aging in the lesbian, gay, bisexual and transgender community?

Opinion 09-151 May a judge participate in a job fair as a representative of a not-for-profit organization in order to encourage members of the lesbian, gay, bisexual and transgender community to take an upcoming exam for the position of court officer and to provide information about the test?

back to top

 

Uncategorized

Opinion 22-40 Where a court's ADR program provides for a free initial session with an approved outside neutral/mediator, optionally followed by privately-paid sessions if desired, the neutral may use courthouse space only for the free initial session.

Opinion 21-98 On these facts, a full-time judge need not report the described financial transactions under Section 100.4(H)(2). The judge should consult the Unified Court System's Ethics Commission concerning whether and how to report them under Part 40.

Opinion 18-124 A town justice, on behalf of the justice court, may accept a testamentary bequest so-ordered by the surrogate’s court to hold a holiday party at the courthouse. The court may invite lawyers to attend the party by posting notices with the bar association and/or at the courthouse.

Opinion 18-109 (1) A full-time judge need not report on his/her annual statement of financial disclosure his/her theoretical involvement with a company the judge believed was completely dissolved and/or abandoned before he/she assumed judicial office, even though it is still listed as “active” on the NYS Department of Corporations website, where (a) the judge has never received any compensation or seen any evidence of business or other activity by the company, (b) the founder assured the judge that the company was never funded, never engaged in any business activity, was abandoned years ago and was thought to be dissolved, and (c) the founder has agreed that the judge should be deemed to have resigned from any theoretical involvement with the company several years ago nunc pro tunc. (2) On these facts, the judge should ask the company’s founder in writing to formally dissolve the apparently abandoned company; once the judge has made this request, the judge has no further ethical obligation.

Opinion 18-101 Justice court websites may not include extensive information promoting a DA’s traffic diversion program, where the proposed language explains the program’s goals and purported benefits to participants; provides detailed application instructions; and states that the program is intended to improve prosecutorial efficiency. However, a justice court website may include a link to the DA’s website as a convenience to defendant motorists.

Opinion 17-180 Must a town justice whose law practice has absolutely no affiliation with the law practice of his/her first-degree relative (parent or child) prohibit the relative from appearing before other judges in the same court?

Opinion 17-161 A judge who had, as an assistant district attorney, prosecuted a case in which the DA’s office now seeks to reevaluate the conviction may, but is not required to, meet with attorneys seeking to vacate that conviction. The fact that the judge has met with the prosecutorial office that is currently re-investigating the case does not change the analysis.

Opinion 17-105 A town justice need not prohibit his/her law firm employee from serving on the town board, provided the employee agrees in writing to abstain from any matters involving the justice court, including the judge's salary and the court's budget.

Opinion 17-101 May a judge meet privately with attorneys who represent criminal defendants concerning a "defense perspective" on the court's handling of "discovery, diversion and disposition of cases," where the meeting will expressly exclude any prosecutors?

Opinion 17-61 A judge may not intervene in a criminal defendant's appeal by advising the parties of his/her belief that he/she correctly stated the legal standard during voir dire, and that the transcript is erroneous, where the judge does not recall his/her exact words and the judge's alleged misstatement is a basis for the appeal.

Opinion 17-15 May a Family Court judge send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge?

Opinion 16-156 A judge should not send a thank you note in response to a laudatory ex parte letter from an attorney who recently appeared before the judge.

Opinion 15-136 May a judge permit a student to make an audiovisual recording of a court proceeding?

back to top

 

Researching and Retrieving Other Committee Opinions

Simply click the link for Search Opinions to research and retrieve other Committee opinions.

For suggestions on use of the search engine, click on Search Help.

back to top

 

Formal and Informal Ethics Inquiries

Individuals who are subject to the Rules Governing Judicial Conduct may seek further guidance from the Advisory Committee on how to apply these and other rules and opinions to their own prospective conduct in specific circumstances.

Simply click the link for Get Advice for more information, including our email policy.

back to top