Opinion 87-11

Topic:          A judge as voluntary party-defendant intervenor in Federal litigation.

Digest:         A judge who is a voluntary party-defendant intervenor in a Federal action relating to the constitutionality of the New York City Board of Estimate may continue as a party on appeal to the United States Supreme Court, provided that the judge does not appear pro se, but obtains legal representation, only because the judge was a party to the litigation before assuming the bench.

Rules:          Rule 100.5

Opinion:

         A judge has asked the Committee’s opinion whether the judge may remain an active party-defendant intervenor in a Federal lawsuit on appeal to the United States Supreme Court, relating to the constitutionality of the New York City Board of Estimate. The judge intervened in the lawsuit as a pro se litigant before assuming the bench. In response to a previous inquiry the Committee rendered the opinion (87-04) that the judge should not continue to appear pro se in the litigation, because, under all the facts and circumstances, the judge’s appearance is not pro se in the traditional sense of self-representation in a personal matter, and constitutes the voluntary assuming of a quasi-representative role, rather like an expert witness or an attorney representing the people of one county (borough of the City of New York), in an appeal before the Supreme Court on a political-legal question. The Advisory Committee concluded that this would be an inappropriate action for a judge.

         However, the judge now indicates he will not appear pro se but will secure legal representation offered by a bar association, and asks if he may remain a party to the litigation under those circumstances.

         The Advisory Committee is of the opinion that, while a sitting judge should not voluntarily intervene as a party in a quasi-representative capacity on a political-legal question, a citizen who so intervenes is not required to withdraw from the litigation solely because, during its pendency, he assumes the bench, provided that, thereafter, he does not proceed pro se.

         This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.