June 24, 2013
This responds to your inquiry (13-68) asking whether you may accompany your ailing, elderly parent to an eviction proceeding within the same courthouse where you preside. You state that the petition names your parent and one or more fictitious John/Jane Does as respondents. Although you are not named as a respondent, you further state that you have an interest in the subject real property. Under these circumstances, you have asked for guidance as to the extent you may participate in the proceeding, including whether you may retain an attorney to represent your parent.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge may not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2 [C]). In addition, a full-time judge is prohibited from practicing law, but may, without compensation, give legal advice to a member of the judge’s family (see 22 NYCRR 100.4[G]).
The Rules Governing Judicial Conduct (Rules) do not prohibit you from retaining an attorney to represent your parent in any legal proceeding (cf. Opinion 11-55 [judge may assist spouse in selecting and consulting with counsel]). In addition, the Committee previously has advised that a judge may accompany a close relative during the relative’s court proceedings (see Opinion 12-143 [individual subject to the Rules may attend criminal proceedings involving 4th degree relative]; 07-205 [judge may attend and observe court proceedings involving adult child]; cf. Opinion 03-125 [judge may serve as parent’s authorized representative at hearing on appeal of Medicare determination]).
While you may not serve as your parent’s attorney during the eviction proceeding, you may testify as a fact witness should the occasion arise (see Opinion 98-118 [Vol. XVII]).1
Finally, in light of your own personal interest in the subject real property, to the extent that you are legally permitted to participate in the proceeding as John/Jane Doe, it is also ethically permissible for you to do so (see, e.g., Opinions 12-96; 93-05).
I have enclosed Opinions 12-143, 12-96, 11-55, 07-205, 03-125, 98-118, and 93-05 for your convenience.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)
1 A judge testifying as a fact witness is, of course, subject to all the usual rules of evidence and procedure applicable to other such witnesses.