Opinion 22-100

June 30, 2022

Digest:         A JHO who presided over a contract dispute between a construction manager and a subcontractor (1) need not advise building residents of an apparent variance from specifications in the installation of certain bathroom stall doors and (2) may not direct the attorneys to investigate whether this variance presents a potential safety issue.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(D)(1)-(2); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e); Opinion 16-154.

Opinion:

         The inquiring judicial hearing officer (“JHO”) presided over a contract dispute between a construction manager and a subcontractor over the renovation and construction of a building. The parties have now reached a settlement, and the JHO indicates that the only remaining contemplated action in the matter is the filing of a stipulation of discontinuance. In the course of the proceedings, the parties apparently presented evidence of a variation from specifications with respect to the installation of certain bathroom stall doors. Although the parties’ dispute was exclusively financial in nature, the JHO now questions whether the hinges used to secure these doors were adequate. The JHO fears there is “potential for serious harm to a resident or visitor” should the hinges fail. We understand that the building management, building residents and door manufacturer were not involved in the case, and thus are unlikely to be aware of any possible issue. Neither party raised any concerns about health or safety. On these facts, the JHO first asks whether the JHO has any ethical obligations to building residents. If not, the JHO then asks whether it is ethically permissible to call in the attorneys on the case and direct them to contact the door manufacturer and request information to assuage the JHO’s concerns that the doors could be unsafe as installed. If the attorneys do not provide satisfactory information, then the JHO would notify building management and/or residents of the JHO’s concerns.¹

          A judge must always avoid 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; 100.2[A]).

         Preliminarily, we note that the JHO has no disciplinary obligations here because nothing in the inquiry suggests any professional misconduct by “a lawyer” or “another judge” (22 NYCRR 100.3[D][1]-[2]). Nor does this inquiry involve the receipt of impermissible ex parte communications that might need to be disclosed (cf. 22 NYCRR 100.3[B][6]). Setting these issues aside, we have not previously required judges to investigate or report health and safety concerns based on testimony before them, and we decline to do so here. Indeed, in Opinion 16-154, the inquiring town judge had issued a final judgment involving a landlord/tenant matter and was concerned about “serious issues with the property which may impact habitability” (see Opinion 16-154). We said the judge had no ethical obligation to report these concerns to the town code enforcement officer, town attorney, or any other town official (id.). We noted that, if the judge chose to exercise their discretion to disclose these concerns to the code enforcement officer, the judge could not issue a warrant for the code enforcement officer to enter the premises or otherwise preside in the resulting proceeding, as the judge could reasonably be perceived as the complainant and/or fact witness (see id.; 22 NYCRR 100.3[E][1][a][ii] [“personal knowledge of disputed evidentiary facts”]; 100.3[E][1][e] [“likely to be a material witness”]).

         Here, too, we conclude the JHO has no ethical obligation to contact building residents concerning an apparent variance from specifications in the installation of bathroom stall doors, which the JHO believes could potentially be unsafe.

         We now turn to the JHO’s alternative question. The planned course of action, as clarified, is to call in the parties’ attorneys and require them to obtain information from an entity that was not a party to the now-concluded litigation, on a topic that was not before the JHO for adjudication. Under the circumstances, this could create an appearance that the JHO is attempting to enlist these attorneys to use the JHO’s quasi-judicial status to persuade the manufacturer to provide information that the JHO apparently has no legal right to demand. This is impermissible under 22 NYCRR 100.2© (“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others”). We therefore conclude the JHO may not direct the attorneys to investigate whether this variance presents a potential safety issue, as it would, at the very least, create an appearance of impropriety (see generally 22 NYCRR 100.2; 100.2[A]; 100.2[C]).

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¹ We are addressing the JHO’s second question as clarified in subsequent communications. It appears that specialized technical expertise may be required to assess whether the bathroom stall doors present any safety risks as installed. Nothing in the inquiry suggests that the JHO has such expertise or received any clear or direct evidence on health and safety issues.