Opinion 25-55

March 27, 2025

Digest:  A judge who files a lawsuit must not voluntarily disclose his/her judicial status to the presiding judge, unless relevant, related, or necessary to the proceeding.  Instead, disclosure should be made to the other side, through counsel where possible, so that both sides can decide jointly on the best course of action to take under the circumstances.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 22-66; 21-165; 21-131; 20-08; 15-131; 08-95; 07-18; 06-145.

Opinion:

          The supervising judge of a particular court anticipates filing a lawsuit in his/her personal capacity in a court where venue may be appropriate.  Although the judge does not directly supervise any of the judges who would potentially preside in the matter, he/she regularly coordinates with the judges who supervise those courts. The judge advises that an administrative order issued some years ago in the jurisdiction where he/she would be filing the lawsuit affirmatively requires disclosure of one’s judicial status in certain circumstances.  However, the judge has already determined those circumstances do not apply.  Accordingly, the judge asks if he/she is ethically required to disclose his/her judicial status to the judge’s adversary and/or the presiding judge.

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

          We have advised that a judge acting as a private litigant is not obligated under the Rules Governing Judicial Conduct to disclose his/her judicial position to the presiding judge or tribunal (see Opinion 07-18).  To the contrary, even a well-meaning disclosure of judicial status could be seen as an attempt to further the litigant-judge’s private interests (id.).  Disclosure is therefore limited to situations where “it is relevant, related, or necessary to the proceeding” (id.; see e.g. Opinion 15-131).  We have advised that a judge appearing as a litigant should instead instruct his/her attorney “to notify opposing counsel and allow the attorneys to decide jointly on the best course of action to take, given the circumstances of the particular case” (Opinion 22-66).

          As the inquiring judge has not pointed to any authority mandating disclosure of his/her judicial position to the presiding judge in the circumstances presented, and his/her judicial status does not appear relevant or related to the contemplated proceeding, the same principles apply here.  Thus, the judge should not make a voluntary disclosure to the presiding judge but should instead instruct his/her attorney to disclose the judge’s role to opposing counsel (see Opinions 20-08; 08-95; 07-18).

          If the judge is appearing pro se (see e.g. Opinion 06-145), he/she should make the disclosure personally.  If the opposing party is unrepresented, the disclosure may be made directly to the opposing party. 

          Finally, because confidentiality is for the benefit of the inquiring judge, he/she is of course free to disclose this opinion to the opposing party or counsel to facilitate the transfer of information, should he/she wish to do so (cf. Opinions 21-165 [“the decision to reveal advice received from the Committee is entirely within the discretion of the judge”]; 21-131 [“The inquirer may share this or other ethics opinions with counsel.”]).