September 10, 2015
Digest: 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.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); Opinions 14-85; 12-26; 11-40; 05-126; 01-46; 97-133.
The inquiring full-time judge asks whether he/she may, at his/her matrimonial attorney’s request, rate the attorney or the law firm on www.avvo.com, an online legal services tool that, among other resources, rates and reviews, lawyers’ professional services. If permitted, the judge, who is identified only by his/her initials in the matrimonial action, would not indicate that he/she is a judge when rating the attorney, and would not identify him/herself, except, if at all, by initials.
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]). A judge must ensure that his/her extra-judicial activities are not incompatible with judicial office, and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).
The Committee has previously advised that judges should not provide testimonials for use in advertisements on behalf of persons with whom the judge has conducted business, even if the testimonial would be given anonymously (see Opinions 14-85 [judge may not provide written testimonial for former campaign manager’s website]; 01-46 [judge may not permit campaign media agency to use of quotes from his/her thank you letter to the agency]). Similarly, the Committee has advised that judges may not provide written testimonials or other statements for use in promoting a professional enterprise, as it would impermissibly lend judicial prestige to advance the private interests of another (see Opinions 12-26 [judge should not provide endorsement for a book’s back cover]; 05-126 [judge may not provide letter of reference for promotion of friend’s real estate business]; 97-133 [judge may not provide a testimonial to be used in the promotion of a criminal practice book]). A judge may, however, rate an attorney’s legal abilities for confidential use by Martindale-Hubbell (see Opinions 11-40; 89-119). In essence, where a legal publisher aggregates the responses provided to it confidentially by members of the bench and bar in order to create an attorney’s peer review rating, the Committee believes a judge does not improperly advance the private interests of either the attorneys or the publication by confidentially completing a form rating the legal abilities of attorneys who practice before the judge (see Opinion 89-119).
Here, this judge wishes to publish an anonymous testimonial about professional services the judge received from his/her matrimonial attorney on a public website. It would not be provided on a “confidential” basis, as it would be posted publicly online. Given the individualized nature of such professional legal services, the Committee notes that an attorney may be able to discern a client’s identity by reviewing even a purportedly anonymous testimonial, as may others involved in the particular litigation or transaction. Merely omitting the judge’s name and title does not “cure the inherent defect” in the proposal, as the testimonial would be readily available for all to view and for the attorney him/herself to use to promote his/her law practice (see Opinion 01-46; cf. Opinion 11-40 [the publication sought confidential opinions on the capabilities and ethics of local counsel, which would be aggregated and used confidentially by the publication and would serve as an unattributable, but verified, resource for the members of the bar and public]). Also, under these circumstances, to publish the judge’s remarks about legal services he/she received will primarily, if not exclusively, promote the lawyer’s practice. Such conduct plainly involves “the commercial and promotional aspects of marketing another’s work” and therefore would improperly lend the prestige of judicial office to advance the private interests of others (see Opinions 12-26; 97-133).
Thus, this judge may not review his/her attorney on an online ratings service displaying reviews to the public, even if anonymously and without reference to a judicial status.