Opinion 26-11

February 5, 2026

Digest:  Once a judge learns that a court clerk provided an unpaid testimonial for a private company that provided disaster recovery services to the town court, the judge must notify the court clerk that such testimonials are prohibited.  The judge need not take any other action, but may report the incident to an administrative or supervising judge in his/her sole discretion.

Rules:   22 NYCRR Part 50; 100.2; 100.2(A); 100.3(C)(2); 100.3(D)(1)-(2); Opinions 25-43; 24-141; 15-103; 08-99.

Opinion:

          The inquiring town justice received a copy of a complaint that was filed with the court system’s Office of the Inspector General.  According to the complaint, a town court clerk provided an unpaid testimonial for a private company based on certain disaster recovery services provided to the town court.  The clerk’s testimonial was included in a commercial that aired on local stations.  The judge understands that the Inspector General declined to pursue the matter and instead forwarded the complaint to the judge.  The judge, who had had no prior knowledge of the clerk’s testimonial, asks for guidance on his/her ethical obligations.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, if a judge receives information indicating a “substantial likelihood” that a lawyer or another judge has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).

          Although Rule 100.3(D) does not require a judge to take disciplinary action with respect to individuals who are not attorneys or judges, we nonetheless observed in Opinion 08-99 (citations omitted):

In fulfilling his/her administrative responsibilities, a judge must require staff, court officials and others subject to his/her direction and control to observe the standards of fidelity and diligence that apply to the judge.  In addition, pursuant to Part 50 of the Rules of the Chief Judge, nonjudicial court employees of the Unified Court System have an independent but corresponding duty to respect and comply with the law and must not use their positions or the prestige of judicial affiliation to secure privileges or exemptions for themselves or others.  While nonjudicial employees of town and village courts are not subject to the rules set forth in Part 50, those rules nevertheless provide standards by which the Committee can evaluate the inquiring judge’s responsibilities in light of the circumstances he/she faces.  When read together, therefore, both the Rules Governing Judicial Conduct and the Rules Governing Conduct of Nonjudicial Court Employees implicitly recognize that misconduct by court personnel can, under some circumstances, undermine public confidence in the integrity and impartiality of the judicial system itself.

          Turning to the present inquiry, we note that neither the court system nor a judge may provide testimonials for lawyers or private entities, including not-for-profit foundations (see e.g. Opinions 24-141; 15-103).  In essence, “[p]roviding a testimonial from the court system or the judge to burnish the [testimonial recipient]’s image and enhance its financial position constitutes an impermissible use of the prestige of judicial office to advance the private interests of the [recipient], however worthy its purposes may be” (Opinion 24-141).  Likewise, court personnel can “undermine public confidence in the integrity and impartiality of the judicial system” (Opinion 08-99) if they invoke their positions or the court system in relation to commercial activities.

          Here, the testimonial was unpaid and there is no suggestion of “corruption within the court itself” (id.), as the court clerk’s misstep does not implicate the court’s adjudicative duties or the administration of justice.  Accordingly, we conclude it is sufficient for the inquiring judge to notify the court clerk that private testimonials are not permitted.  Although the judge has no further disciplinary responsibilities, the judge may, in his/her sole discretion, report the clerk’s testimonial to an appropriate administrative or supervising judge (see e.g. Opinion 25-43 [leaving to the judge’s discretion whether such a report might “be helpful to prevent similar occurrences in the future”]).