Opinion 25-91

June 26, 2025

Digest:  Where a judge’s spouse has commenced a lawsuit in the spouse’s own name and the judge, as co-owner of the marital home, previously engaged in communications with a neighboring property owner that are apparently material and relevant to the lawsuit, the judge may attend the ensuing court proceedings as an interested party and potential witness.

Rules:   22 NYCRR 100.1; 100.2(A), (C); 100.4(A)(1)-(3); Opinions 23-135; 21-96; 13-68; 13-113; 12-143; 10-118; 09-12; 90-11.

Opinion:

          The inquiring full-time judge has had numerous oral and written communications with the owners of real property adjacent to the judge’s home, pertaining to an ongoing dispute.  These conversations were unsuccessful, and the judge’s spouse filed a lawsuit against the property owners.  The lawsuit was filed solely in the spouse’s name due to judicial security concerns, but the judge’s communications with the defendants are referenced and/or attached in motions and exhibits “by both sides.”  The spouse’s attorney has asked the judge to attend an upcoming court appearance, “because the [presiding] judge often conferences the case with litigants” and the attorney believes the inquirer has “important information” material and relevant to the issues in the proceeding.  The judge asks if he/she may attend and provide information to the court as a co-owner of the marital home.

          “A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved” (22 NYCRR 100.1).  A judge must respect the law and comply with it, and must act in a way that inspires public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others” (see 22 NYCRR 100.2[C]).  Further, a judge’s extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

          Clearly, a judge may bring an action on his/her own behalf in a court having jurisdiction over the action (see e.g. Opinions 23-135; 09-12; 90-11).  Additionally, while a judge must “not testify voluntarily as a character witness” (22 NYCRR 100.2[C]), no such rule bars a judge from testifying as a fact witness (see e.g. Opinions 21-96; 10-118).  Finally, we have advised that a judge may accompany a close relative or friend during a court proceeding (see e.g. Opinions 13-113; 12-143).

          Indeed, in Opinion 13-68 we considered a judge who was “not named as a respondent” in an eviction proceeding against the judge’s parent, but nonetheless had “an interest in the subject real property.”  On those facts, we said the judge may accompany their parent to the court proceeding and “may testify as a fact witness should the occasion arise,” subject to “all the usual rules of evidence and procedure applicable to other such witnesses” (id.).  We further recognized that, “in light of [the judge’s] own personal interest in the subject real property, to the extent that [the judge is] legally permitted to participate in the proceeding as John/Jane Doe, it is also ethically permissible for [the judge] to do so” even though not personally named as a respondent in the matter (id.).

          Here, inasmuch as the lawsuit involves the judge’s spouse and their co-owned property, and the judge possesses information that both sides consider relevant to the lawsuit, we conclude it is ethically permissible for the judge to attend court proceedings in the matter and participate to the extent legally permitted or directed by the court.