January 19, 1995
Digest: A County Court judge who is a plaintiff in a small claims action in a town court is not prohibited from hiring a private investigator to uncover facts in support of a motion to transfer the case to a different local court, although the wisdom or justification for such activity is questionable.
Rules: 22 NYCRR 100.2(a); 100.3
A County Court Judge is a plaintiff in a small claims action brought in a town court in another county. The judge believes that the town justice acted improperly in the matter and “either has a personal undisclosed relationship with the defendant or ... a personal bias against me.” The judge asks whether it is permissible to hire a licensed private investigator to gather facts which would be used to support a motion by the judge to transfer the case to a different local court.
In principle, the judge is not ethically prohibited from engaging in the activity proposed. A judge who is a litigant has the same rights to take any proper steps in the litigation as would a non-judge litigant. However, we question the wisdom or justification for the proposed investigation.