November 28, 2012
This responds to your inquiry (12-121) asking whether there is an ethically permissible way for attorneys, who represent a certain category of petitioners in name change proceedings, to share their clients’ concerns with members of the bench.
A judge must avoid impropriety and even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2 and 100.2[A]). Thus, a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]). In addition, “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” except under limited circumstances (22 NYCRR 100.3[B]).
An ethically permissible way for attorneys to share their clients’ concerns with judges without creating an appearance of impropriety would be for an entity such as a bar association or the Judicial Institute to provide a CLE or CJE program on the subject with a balanced panel of presenters, such as a judge, an attorney who prepares these types of petitions and, notwithstanding that most of name change proceedings are unopposed, an attorney whose clients might have an interest in the way name change proceedings are conducted and publicized (e.g. an attorney who represents creditors). The program should take place in a neutral setting and be open to all members of the bar and bench.
Enclosed, for your convenience are Opinions 12-4; 12-27 and 12-70 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)