Opinion 10-118

September 16, 2010

Digest:         A judge may convey to an attorney for a child in a custody case objective factual information about the judge’s experience with the child’s parent that is relevant to the custody matter, but must avoid any appearance he/she is advocating for any party in the case.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 08-223; 07-153; 07-32; 98-118 (Vol. XVII); 96-128 (Vol. XV).

Opinion:

         A judge states that on three occasions when walking in a residential neighborhood, a person inside an apartment building made unkind and sarcastic remarks to the judge about the judge’s spouse. The judge advises that his/her spouse taught the individual’s child and that his/her spouse is friendly with the child’s other parent. According to the judge, the speaker is currently involved in a custody dispute which is pending before a different judge, and the child’s attorney has interviewed the judge’s spouse, who expects to be called as a witness if the matter is tried. The judge states that, based on his/her experience in family court matters, the unkind and sarcastic remarks “are relevant to any decision regarding custody of the ... child.” The judge asks if he/she may tell the child’s lawyer of the remarks and/or convey that information to the child’s other parent.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may not lend the prestige of judicial office to advance the private interests of another and may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).

         While a judge may only testify as a character witness if under subpoena or in response to an official request from an entity such as a court, district attorney, probation or parole department (see 22 NYCRR 100.2[C]; Opinion 07-153), no such rule bars a judge from testifying as a fact witness either in person or by affidavit (see Opinions 08-223; 07-153; 98-118 [Vol. XVII]; 96-128 [Vol. XV]). Similarly, the judge herein may convey objective factual information to the child’s lawyer about the judge’s experience with the child’s parent. Moreover, should the judge speak to either parent it may create an appearance of bias (see generally 22 NYCRR 100.2[A]; 100.2[C]).