Opinion 14-119

September 4, 2014

Digest:         Under the circumstances presented, judge may use official court stationery for correspondence in the judge’s pro se proceeding to expunge a frivolous multi-million dollar lien which a litigant appearing before the judge filed against the judge’s property.

Rules:          UCC § 9-518(d); 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 14-58; 12-31; 07-104; 00-09 (Vol. XVIII); 00-07 (Vol. XVIII); 99-155 (Vol. XVIII); 98-67 (Vol. XVII); 97-92 (Vol. XVI); 97-36 (Vol. XV); 88-10 (Vol. I); Joint Opinion 13-189/14-02.

Opinion:

         In Opinion 14-58, the Committee advised that, under the specific circumstances presented, it was not unethical for the inquiring judge to use the court’s clerical and other resources to assist in preparing the judge’s pro se proceeding to expunge a frivolous multi-million dollar lien filed against the judge’s property by a litigant appearing before the judge, unless otherwise prohibited by law or court rule. The judge now asks whether it is ethically permissible to use official court stationery in corresponding with the respondent, the court clerk, County Clerk, or others in connection with the expungement proceeding addressed in Opinion 14-58.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Accordingly, 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]).

         The Committee has addressed the permissibility of using court stationery in a variety of circumstances.¹ For example, the Committee has advised that a judge may not use judicial letterhead when applying for approval to subdivide unimproved real property situated in the county in which the judge serves (see Opinion 00-09 [Vol. XVIII]); when pursuing a private defamation action against a newspaper for an article that characterized the judge’s judicial performance in terms which the judge considered defamatory (see Opinion 00-07 [Vol. XVIII]);² when writing to the State Division of Transportation to express support for the installation of a traffic light to ease congestion on a road near the judge's home (see Opinion 97-36 [Vol. XV] [“while the judge may express a position as a private citizen on a matter of personal concern, the judge may not use judicial stationery or otherwise indicate his/her judicial office in advancing such private interests”]); when writing as a private citizen whose personal interests will be affected to express his/her personal view on repeal of specific provisions of the SAFE Act (Joint Opinion 13-189/14-02); or when writing as a judicial candidate to urge voters and fellow law school alumni to support the judge's re-election (see Opinion 99-155 [Vol. XVIII]). In each of these instances, the Committee concluded that the use of official stationery would create an appearance that the judge was lending the prestige of judicial office to advance the judge’s private interests (see 22 NYCRR 100.2[C]).

         In other instances, the Committee has advised that a judge may use judicial stationery, marked “personal and unofficial,” in connection with certain extra-judicial activities, such as: when submitting a legal article for publication (see Opinion 12-31); when applying for a position teaching law at a law school or university (see Opinion 98-67 [Vol. XVII]); when writing a permissible letter of reference (see Opinion 88-10 [Vol. I]); or when responding to an official request by the Division of Parole for a statement and/or recommendation concerning an incarcerated person in the judge’s former capacity as the attorney for the inmate (see Opinion 97-92 [Vol. XVI]).

         Finally, the Committee has advised that a judge whose chambers were burglarized by a person who pled guilty and is now incarcerated for the crime may use judicial stationery in writing a letter to the parole board at the District Attorney’s request, in the judge’s capacity as a crime victim (see Opinion 07-104). The Committee noted the judge “may mention relevant facts, such as the location of the crime (i.e., judicial chambers) and the judge’s feelings at having someone familiar with the court premises burglarize his/her chambers” and ultimately concluded that, under the circumstances presented, “the use of judicial stationery creates no appearance of misusing the prestige of judicial office” (id.).

         The same considerations that caused the Committee to conclude it is not unethical for the inquiring judge to use the court’s clerical and other resources to assist in preparing the judge’s pro se proceeding to expunge a frivolous multi-million dollar lien filed against the judge’s property by a litigant appearing before the judge (see Opinion 14-58), also compel the Committee to conclude the judge may use his/her judicial stationery in such a proceeding. The Committee notes the respondent in the judge’s proposed expungement proceeding is already fully aware of the judge’s judicial status, as the judge’s performance of judicial duties appears to have been the sole basis for the purported lien. Indeed, if the inquiring judge wishes to commence an expungement proceeding under UCC § 9-518(d), he/she must disclose his/her identity as a judge to all parties and the court (see UCC 9-518[d][2][A][I] [“The petition in a special pleading hereunder shall plead that” the financing statement filed was in retaliation for the “performance of the petitioner’s official duties in his or her capacity as an employee of the state or a political subdivision thereof”]).

         Under the specific circumstances presented, the Committee believes the use of judicial stationery when communicating with the respondent or other participants in the expungement proceeding and when transmitting papers to the court clerk for filing, will not create an appearance of misusing the prestige of judicial office (see generally Opinions 14-58; 07-104). Presumably, if the inquiring judge prevails, it will also be necessary to transmit the resulting order to the County Clerk or other designated officials to effectuate the expungement, and the Committee similarly concludes that use of judicial stationery for such correspondence will not create any appearance of impropriety (see generally id.).

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     ¹ In prior opinions, the Committee has used the term “judicial letterhead” interchangeably with terms such as “judicial stationery,” “official stationery,” and “court stationery.”

     ² The Committee advised that the inquiring judge “should not use court resources, staff, stationery, or time that would otherwise be devoted to judicial duties” in pursuing his/her proposed private action for defamation against a newspaper based on an “article about the judiciary in the inquiring judge's county” (Opinion 00-07 [Vol. XVIII]).