January 31, 2019
Digest: A judge may not email governmental agencies to obtain evidence in a disputed litigation. A judge may invite attorneys to email motion papers directly to him/her, but should require that opposing counsel be copied on the email.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2©; 100.3; 100.3(B)(6); 100.3(B)(6)(d); 100.3(B)(7); 100.3(B)(12); 100.4(G); Opinions 15-197(A); 90-36; 88-36.
A New York City Housing Court judge asks if he/she may, with the parties’ consent, expedite the proceedings by emailing governmental agencies to obtain certain records necessary to litigate pending claims, instead of leaving it to the litigants to acquire them via subpoena. The judge further asks if he/she may permit attorneys to email motion papers directly to him/her.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge must perform the duties of judicial office impartially (see 22 NYCRR 100.3) and must dispose of all judicial matters “promptly, efficiently and fairly” (22 NYCRR 100.3[B]). A judge must 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” unless an exception applies (22 NYCRR 100.3[B]). For example, a judge may, with the parties’ consent, “confer separately with the parties and their lawyers on agreed-upon matters” (22 NYCRR 100.3[B][d]). A full-time judge may not provide legal advice to non-family members (see 22 NYCRR 100.4[G]), but may “make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard” (22 NYCRR 100.3[B]).
1. Obtaining Agency Records or Information for the Parties
The judge’s proposal to expedite the proceedings by obtaining agency records or information for the parties is based on techniques he/she used in his/her former law practice. For example, when representing tenants in certain nonpayment proceedings, the judge used to email the check reconciliation office at the Department of Social Services (DSS) to request certified copies of the fronts and backs of cashed shelter checks, issued to a landlord on behalf of a tenant, in order to ascertain who cashed the checks. The judge suggests this procedure would be “much more efficient than having a pro se litigant subpoena DSS,” in that “pro se subpoenas are often done incorrectly the first time, or DSS doesn’t appear, or appears with the wrong documents.” Documents that currently take months to get could be obtained within a day or two, and the judge would provide copies to both parties. Similarly, as a legal services attorney, the judge used to email the New York City Housing Authority Legal Department for information regarding recertification and termination of a tenant’s Section 8 subsidy. The judge again wishes, with permission of the parties, to resume this practice, explaining that being able to do this as an attorney “quickly answered questions that judges and litigants had about subsidies involved in the proceeding, and helped to resolve the case efficiently.” Here, too, the judge proposes to share his/her email and any agency response with both sides.
We conclude that for a judge to email governmental agencies in an effort to obtain evidence relevant to a pending litigation, thereby relieving a tenant from the obligation to obtain proof of payment, would create an appearance of partiality and risk casting the judge into an advocacy role. To be sure, the judge may undertake reasonable efforts to facilitate the ability of an unrepresented tenant to have his/her matter fairly heard. Thus, the judge may, for example, alert the tenant that certain evidence must be obtained by subpoena, or explain the content and form of a valid subpoena, or assist the litigant in determining the address to which the subpoena may be sent. However, the actual procurement of evidence sought or needed by a party, in support of or opposition to a disputed claim, goes beyond the judge’s role as a neutral arbiter (see Opinions 90-36 [“judges may not give legal advice to any litigants, including pro se litigants”]; 88-36 [improper for town justice who will decide a proceeding to recover possession of real property to assist a party in preparing the petition bringing on the proceeding]; 15-197[A] [unless legally required, a town justice may not assist prosecutors by arranging meetings with the prosecutor’s prospective witnesses and/or instructing them to bring lab reports or other possible evidentiary materials to court]).
Moreover, rather than merely enabling the tenant to have the matter fairly heard, the actions proposed here – working to obtain disputed evidence more expeditiously than a party would be able to achieve on its own – would lend the prestige of judicial office to advance the parties’ private interests. Although the judge believes that both parties are prejudiced by the delay resulting from normal subpoena practice, he/she nevertheless notes that “landlord attorneys routinely refuse to issue the subpoena,” thereby suggesting that a landlord would benefit less from the judge’s proposed course of action than would a tenant. And although the judge contemplates obtaining permission of the parties, it is readily imaginable that a party asked by a judge to provide consent to the judge’s preferred course of action might feel pressure to acquiesce, even though likely to benefit the other side. Accordingly, the judge may not email governmental agencies to obtain evidence in a disputed litigation.
2. Permitting Attorneys to Email Motion Papers to the Judge
The judge further asks if he/she may invite attorneys to email motion papers directly to him/her and simultaneously to opposing counsel. The judge explains that when attorneys scan and email copies of motion papers at the time of their filing and service, the judge is able to read the papers in advance and to conduct preliminary research on any questions the judge might have so he/she will be fully prepared for argument.
We see no ethical problem arising from the receipt of motion papers by email in addition to their hard-copy filing. Needless to say, a judge may – indeed, must – read motion papers submitted by a party’s counsel. It is common practice for attorneys, upon formal filing of motion papers with the clerk of the court, to provide “courtesy copies” of such papers directly to the presiding judge to expedite the judge’s receipt of the papers and provide the judge with additional time to familiarize him/herself with their contents. We see no ethical difference between leaving printed courtesy copies with the judge’s part clerk or court attorney or in the judge’s physical mailbox and sending digital copies to the judge’s email address. And inasmuch as an attorney’s mere handing a set or copy of filed motion papers to a judge, without discussion of the contents, does not constitute an unauthorized ex parte communication, neither does the attachment of such papers to an email. In order to avoid any appearance of impropriety, however, the judge should require that opposing counsel be copied on any email.