June 11, 2015
Digest: Under the circumstances presented, a judge who is a party litigant may make a legal argument that relies on the judge’s judicial status.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 15-92(B); 14-119; 12-96; 08-95; 07-104; 07-18; 00-09; 00-07; 97-36.
A judge who is a party in a matrimonial proceeding says his/her pistol permit was suspended after the police filed a domestic incident report about the judge and his/her spouse.1 The judge/party, through counsel, now seeks reinstatement of the pistol permit. The judge proposes to argue that carrying a pistol is necessary for the judge’s personal safety because he/she serves as a judge who routinely presides over arraignments, sentencing and other emotionally charged proceedings, while alone and at night. The judge asks if it is ethical to so argue in the matrimonial case.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Accordingly, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).
The Committee has generally advised that judges may not use their judicial stationery or titles when addressing purely private matters (see Opinions 12-96 [a judge charged with violating the vehicle and traffic law may negotiate with the prosecutor for reduction or dismissal of the charged violation, but must not use or invoke his/her judicial title/status in the negotiations]; 00-09 [a judge may not use his/her judicial stationery or judicial title in correspondence or legal appearances related to an application to subdivide land]; 00-07 [a judge may not use judicial stationery or otherwise use the prestige of judicial office while pursuing a private defamation action based on a newspaper article about the local judiciary]; 97-36 [judge may not use judicial stationery when writing the State Division of Transportation concerning the installation of a traffic light near his/her home]). Thus, for example, the Committee has advised that a judge or quasi-judicial official who is a party in a civil litigation should not voluntarily and unnecessarily disclose his/her judicial status to the presiding judicial officer (see Opinions 08-95; 07-18).
However, the Committee has concluded differently in some cases where the judge’s position is directly implicated in a litigation (see Opinions 14-119; 07-104; cf. Opinion 07-18 [acknowledging that disclosure may in some cases be “relevant, related, or necessary to the proceeding”]). For example, in Opinion 07-104, the Committee considered an inquiry from a judge whose chambers were burglarized by a person who pleaded guilty and was jailed for the crime. The Committee advised that the judge may use judicial stationery when writing a letter, as a crime victim, to the parole board at the District Attorney’s request (see Opinion 07-104). The Committee noted the judge “may mention relevant facts, such as the location of the crime’s (i.e., judicial chambers) and the judge’s feelings at having someone familiar with the court premises burglarize his/her chambers” and ultimately concluded that, under these circumstances, “the use of judicial stationery creates no appearance of misusing the prestige of judicial office” (id.). In addition, the Committee has advised that a judge may use judicial stationery in corresponding with the court clerk, County Clerk, and the respondent in connection with the judge’s pro se proceeding to expunge a frivolous multi-million dollar lien filed against the judge’s property, where “the judge’s performance of judicial duties appears to have been the sole basis for the purported lien” (Opinion 14-119 [emphasis added]).
Although the Committee expresses no opinion on the merits of this judge’s legal arguments (see Opinion 00-07; Judiciary Law § 212[l]), the proposed reference to the judge’s judicial position appears to be legitimate advocacy, and is “relevant, related, or necessary to the proceeding” (Opinion 07-18), rather than an improper attempt to lend the prestige of judicial office to advance the judge’s private interests (see 22 NYCRR 100.2[C]). The inquiring judge proposes to tender arguably relevant employment-based arguments, as other litigants presumably do, for the presiding judge to consider or reject when deciding the merits of the pistol permit suspension. The Committee sees no appearance of impropriety in the judge arguing that his/her current judicial position creates specific circumstances warranting reinstatement of his/her pistol permit (cf. Opinion 15-92[B] [“Where, as here, the judge must disclose ‘the amount and source of his/her income’ to establish his/her ability to ‘meet the material and accommodation needs of the invited persons,’ it will clearly be necessary for the judge to disclose his/her identity as a judge.”]).
Thus, this judge may permit his/her counsel to invoke legal arguments about the judge’s judicial status in these circumstances.
1 The judge characterizes the dispute as a “verbal argument” which resulted in no criminal charges and avers that neither party made allegations of any violence or threats of violence.