Opinion 03-139

Digest:         A judge may be a named plaintiff in a lawsuit that will challenge the integrity of the judicial convention system to select Supreme Court Justices in New York State

Rule:            22 NYCRR 100.1; 100.2(A), (B), ( C);100.3(B) (1), (D) (1), (D) (3); 100.4(A), (C) (3) (b)(iv), (D) (1) (a), (G); 100.5 (A) (1) (h), (A) (1) (I), (A) (4) (a); 1200.3 (A) (5); In the Matter of Arthur M. Wisehart, 281 A.D2d 23; In the Matter of Philip J. Dinhofer; Opinion 87-11 (Vol 1), 90-11 (Vol. V), 93-05 (Vol X)

Opinion:

         A full-time judge asks whether it is ethically permissible for the judge to be named a plaintiff in a lawsuit that will challenge the integrity of the judicial convention system used to select Supreme Court justices in New York State.

         In Opinion 90-11, Vol V, this Committee advised that “(N)o provision of the Rules of the Chief Administrator prohibits a judge from bringing an action on his or her behalf in a court having jurisdiction of the action.” A part-time judge, therefore, may bring a pro se action in the small claims part of the judge’s own court (id,) and a full-time judge who rents a condominium unit may bring an action against the tenant of that unit in the court in which the judge presides [Opinion 93-05(Vol. X)]. A judge who, prior to assuming the bench voluntarily assumed a quasi-representative role as a pro se party-defendant, intervenor in a Federal lawsuit relating to the constitutionality of the New York City Board of Estimates, however, could not continue to participate pro se, but could do so only with legal representation. (Opinion 87-11, Vol. I).

         While it is the Committee’s view that the judge in the present inquiry also is not prohibited from participating as a litigant in the lawsuit described, given the subject matter of the lawsuit and the potential allegations described by the judge, the Committee believes the judge should consider certain potential consequences of his/her involvement as a plaintiff.

         Certain allegations of fact described by the judge would, if true, constitute violation of several of the Rules Governing Judicial Conduct. 22 NYCRR 100.1; 100.2 (A),(B), ( C); 100.3(b)(1); 100.4(A), ( C)(3)(b)(iv), (D)(1)(a);100.5(A)(1)(h),(A)(4)(a). If the judge intends to certify the contents of a complaint including such allegations, and the judge’s certification is based on his/her knowledge of the facts that give rise to such allegations, the judge has an ethical responsibility to report such facts to the Commission on Judicial Conduct. 22 NYCRR 100.3(D)(1),(3). In the alternative, though the allegations may be relevant to the remedy sought by the judge in the lawsuit, if they are found to be without merit, they could be view as impugning the integrity of the judiciary in violation of the Rules Governing Judicial Conduct. 22 NYCRR 100.1;100.4(A); see 22 NYCRR §1200.3[DR 1102(a)(5)]; In the Matter of Arthur M. Wisehart, 281 A.D.2d 23[attorney suspended from the practice of law for 2 years for making scurrilous remarks about a presiding judge]; In the Matter of Philip J. Dinhofer, 257 A.D.2d 326 [attorney suspended from the practice of law for making derogatory, undignified and inexcusable comments to a judge].

         Only the inquiring judge can fully assess the potential of these consequences should the judge participate in the lawsuit that is the subject of this inquiry.