Opinion 13-188

January 30, 2014

Digest:         A judge may permit his/her court attorney to commence a special proceeding to remove a public officer, subject to certain limitations.

Rules:          22 NYCRR part 50; 22 NYCRR part 100; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(C)(2); Opinions 13-134; 12-41; 09-12; 96-40 (Vol. XIV); 93-05 (Vol. X); 90-103 (Vol. VI); 90-11 (Vol. V).

Opinion:

         A full-time judge states that his/her court attorney, who is the judge’s personal appointee, wishes to bring a special proceeding under the Public Officers Law, in the court attorney’s own name, seeking to remove a public officer. The proceeding would be brought pro se in the court attorney’s individual capacity, and the court attorney would likely appear before certain New York State trial and/or appellate courts.¹ According to the judge, the non-judicial ethics helpline has advised the court attorney that the Rules Governing Conduct of Non-judicial Court Employees (22 NYCRR part 50) do not prohibit the employee from bringing the proceeding in his/her own name, subject to the following caveats:

[the employee] may not work on the petition on court time; [he/she] may not utilize any court resources that are not available to the general public; [he/she] must, at all times, proceed as a litigant rather than a court employee; and [he/she must] not lend the prestige of [his/her] office to [his/her] endeavors with respect to the petition.

Moreover, the helpline advised the court attorney to seek the inquiring judge’s permission, which the court attorney has done. The inquiring judge now asks the Committee whether he/she may permit the court attorney to initiate this special proceeding, subject to the above limitations.

          A judge must 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]). Among other things, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Moreover, although “the limitations on the extrajudicial conduct of a judge do not automatically apply to the judge’s law clerk or other personal appointees” (Opinion 13-134), the judge must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

         The Committee has advised that “[t]he Rules Governing Judicial Conduct do not prohibit a judge from representing him/herself in any court having jurisdiction over the legal matter” (Opinion 12-41; see also, e.g., Opinions 09-12; 96-40 [Vol. XIV]; 93-05 [Vol. X]; 90-103 [Vol. VI]; 90-11 [Vol. V]). A fortiori, the Committee concludes that Part 100 does not prohibit a judge’s court attorney from bringing an action on his/her own behalf in any court having jurisdiction of the action or proceeding.

         Accordingly, the inquiring judge need not prohibit the court attorney from initiating the proceeding pro se, particularly as the employee has agreed to follow the advice and recommendations of the nonjudicial ethics helpline, which should help guard against any possible appearance that the prestige of judicial affiliation is being used to further a court employee’s private interests (see 22 NYCRR 100.2[A]; 100.2[C]). (Contact: ETHICS HELPLINE: 1-888-28-ETHIC.) Nor are there any additional terms or conditions that this Committee would impose beyond those recommendations, under the circumstances presented.

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     ¹ The judge states that appeals from the court in which the employee wishes to sue are heard in a department of the Appellate Division different from the department hearing appeals from the court in which the employee works.