January 26, 2017
Digest: A Family Court judge may send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1); 100.4(A)(3); Opinions 14-181; 14-151; 12-113; 09-11; 07-05; 06-176; 03-103.
The inquiring Family Court judge has become aware of a car accident which reportedly killed several young people, including the driver and some passengers. The judge had presided over several juvenile delinquency matters involving the driver and now asks if he/she may send a sympathy card to the driver’s family. The judge does not know the identities of the passengers who died, and thus does not know if they are subjects of juvenile delinquency or other proceedings before him/her.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not allow family, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge’s judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]), and therefore a judge must not engage in extra-judicial activities that “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A]).
In other contexts, the Committee “has recognized that the community benefits from having judges take an active part in community affairs whenever possible, including in community efforts to prevent juvenile delinquency” (Opinion 12-113). A judge also may contribute to a fund created on behalf of a Legal Aid Society attorney who has been seriously injured in an accident, even though that attorney has appeared before the judge (see Opinion 03-103) and may extend seasonally appropriate greetings to the public through newspaper advertisements on holidays or other special occasions (see Opinions 07-05; 06-176).
In some circumstances, a judge’s proposed extra-judicial involvement with an individual who recently appeared before him/her could readily call the judge’s impartiality into question and/or create an appearance of impropriety. For example, a judge who presided over a now-concluded criminal domestic violence matter may not allow the victim to meet with him/her to “speak to the judge about the history of abuse he/she experienced before the trial” and “thank the judge for considering the victim’s views at the time of sentencing” (Opinion 09-11). A judge may not serve as a mentor to a teenager who has recently appeared before him/her as the respondent in a Persons in Need of Supervision truancy proceeding (see Opinion 14-181). And a judge in a treatment-oriented problem-solving court may not write a letter of reference for a former defendant/participant who wishes to serve as a volunteer, where “the judge’s relevant knowledge of the individual’s suitability as a volunteer is inextricably intertwined with the individual’s recent involvement as a defendant and problem-solving court participant before the judge” (Opinion 14-151).
Here, by contrast, in light of the driver’s death, he/she will no longer be the subject of any further proceedings before this judge. Indeed, if there is any litigation concerning the driver’s estate and/or any lawsuits arising from the accident, they are unlikely to be heard in family court. The Committee is also confident that the judge can graciously acknowledge the decedent’s life and loss in a sympathy card without casting doubt on his/her impartiality.
Accordingly, the Committee believes it is permissible for a family court judge to send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge. The judge should, as always, be mindful of generally applicable limitations on judicial speech and conduct (see 22 NYCRR 100.3[B]; 100.3[B].