Opinion 23-25

March 23, 2023

Digest:         (1) A full-time judge who learns that a law firm’s website advertises its experience appearing before particular judges, and hosts individual biographical pages for those judges on its own website in a format that combines the judges’ information with the solicitation of business, must request in writing that the firm take down these biographical pages and remove the associated links.
(2) On these facts, reporting is not mandated; any exercise of the judge’s disciplinary functions is left to the judge’s sole discretion.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(D)(2); 100.4(G); Opinions 20-213; 20-158; 12-62/12-69; 12-61; 11-35; 03-92.

Opinion:

         The inquiring full-time judge has learned that a local law firm includes a biography of the judge on the law firm’s website. The inquiring judge has not been singled out for this treatment. The law firm’s website states that the firm appears before many judges, and lists the judges’ names with links to biographical pages hosted on the law firm’s website.¹ Each biographical page is headed by the law firm’s name, logo, and website links, and bears the trade dress of the firm’s website. In addition, the lower half of the page contains a form and contact information for website visitors to schedule a consultation. The judge is concerned that the website may lend the prestige of judicial office to advance the law firm’s private interests. Moreover, notwithstanding the prohibition on the practice of law by full-time judges (see 22 NYCRR 100.4[G]), at least one person who happened upon the judge’s page on the firm’s website asked the judge if they had joined the firm. On these facts, the judge asks if they must request that the firm take down the biographical page, and whether the judge is obliged to report the attorney(s) to the grievance committee.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests and must 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]).

         When a judge learns that a third party is improperly using the judge’s name and/or judicial status, we have often required the judge to object in writing. For example, where a judge learned that an organization was using their name and title to imply that attendees at an upcoming educational program would be afforded a special opportunity to influence the judge, we advised that the judge must withdraw from the program and object in writing to the sponsor (see Opinion 12-62/12-69). Similarly, where a judge learned that a consensual recorded interview was posted on a law firm’s website, we said the judge must instruct the firm to remove the post (see Opinion 12-61). Where a judge learns that a non-profit entity is using the judge’s name or photograph for fundraising, we have said the judge must instruct the entity to cease doing so (see e.g. Opinions 12-61; 11-35; 03-92).

         The facts here present a closer question, in that the law firm makes an apparently truthful statement: that it has appeared before a long list of identified judges, and posts publicly available biographical information about those judges. It is commonplace for a law firm and its attorneys to list their admissions to practice in various courts, and to tout successes in those courts. It appears but a small step to add the names of individual judges before whom the firm’s attorneys have appeared, without necessarily implying an improper relationship with those judges. Indeed, we expect an attorney might routinely advise a litigation client whether the firm had prior experience before the particular judge presiding in the client’s case.

         Here, however, certain features of the law firm’s website take the issue beyond the innocuous statement that its attorneys have appeared before a particular judge or judges. Most significantly, the list of judges, and their individual biographical pages, are all hosted on the law firm’s website, presented within the format of the firm’s logo and trade dress, and accompanied by links to the firm’s promotional materials. Above each judge’s biography is a banner containing the firm’s name and telephone number, and a link to book a strategy call. Below each biography the firm provides detailed contact information, touts its prominence in the field, urges website visitors to schedule a consultation, and invites them to quickly and easily request one by entering personal information and describing their legal problem in an online form. By posting the judge’s biography alongside the firm’s promotional material, the firm has connected the judge’s name with the solicitation of business and has created the improper appearance that the judge either supports or is affiliated with the firm.

         In Opinion 20-158, we advised that an appellate division justice who learns that a law firm’s website features screenshots and video of the court’s oral arguments, in which the court’s justices are visible and readily identifiable, must ask the law firm to remove them. In our view, the law firm here goes further by posting information in a manner that directly incorporates the judges’ names and biographies into pages that advertise the firm’s services.

         Accordingly, the inquiring judge must request in writing that the law firm take down the individual biographical pages for judges hosted on the law firm’s website and remove the associated links.

         After doing so, the judge has no continuing obligation to take further action. As we wrote in Opinion 20-158, “[T]he court and its justices have no obligation whatsoever to monitor law firm websites to ensure that the court’s publicly available webcasts are not being misused.” The same is true with regard to judges’ publicly available biographical information.

         Finally, a judge who has information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). In all but the most unambiguous cases of potential attorney misconduct, the determination of whether that two-prong test is met and, if so, what action is “appropriate,” are best left to the discretion of the individual judge. Only in those few instances where a judge concludes that the two-prong test is met and that the alleged misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness, or fitness to practice law is a judge required to report the attorney to the appropriate grievance committee (see e.g. Opinion 20-213). Here, we believe this analysis is best left to the sole discretion of the inquiring judge.

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¹ That is, the law firm is not simply linking to the publicly available biographies which are hosted on the Unified Court System website, although they cover some similar information (e.g. judicial role, education, bar admissions, and professional experience). The law firm does not identify its source(s) for the information provided.