Opinion 17-144

January 24, 2018

Digest:         A town or village justice who is not a notary public may authenticate documents where legally permitted to do so, provided he/she does not improperly lend the prestige of judicial office to advance private interests or otherwise create an appearance of impropriety. An otherwise permissible good-faith authentication of a document does not become improper merely because it is submitted in litigation.

Rules:          NY Const art VI § 20(b); CPLR 2309(a); 3113(a)(1); Real Property Law § 298; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); Opinions 15-145; 13-111; 03-129; 03-42; 98-99; 94-78; 90-161; Russell v Board of Elections, 45 NY2d 800 (1978); Matter of S., 2018 Ann Rep of NY Commn on Jud Conduct, at 247; Matter of R., 2017 Ann Rep of NY Commn on Jud Conduct, at 192.

Opinion:

         A town or village justice inquires, in light of a disciplinary decision discussed in the Summer 2017 edition of The Magistrate, whether or not he/she is ethically permitted to take oaths and authenticate documents (see Matter of S., 2018 Ann Rep of NY Commn on Jud Conduct, at 247).

         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]). A judge must be faithful to the law (see 22 NYCRR 100.3[B][1]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

         A town or village justice, by virtue of his/her judicial office and in his/her capacity as a town or village justice, has the legal authority to take a deposition, take an acknowledgment, and/or administer an oath anywhere within the geographical limits of the county in which he/she serves (see CPLR 3113[a][1]; 2309[a]; Real Property Law § 298; Opinion 98-99).

         A part-time judge, unlike certain full-time judges, is ethically permitted to hold the public office of notary public (compare Opinions 03-42; 94-78 with Opinions 13-111; 03-129; NY Const art VI § 20[b]). However, assumption of judicial office does not confer the status of notary public (see Opinion 98-99).

         Thus, in an Election Law matter, the Court of Appeals invalidated certain political nominating election petitions which had been acknowledged by a town justice because the operative statute specifically required that the document be acknowledged by a person holding the office of notary public or commissioner of deeds (see Russell v Board of Elections, 45 NY2d 800 [1978]; Opinions 03-42; 98-99; see also e.g. Matter of R., 2017 Ann Rep of NY Commn on Jud Conduct, at 192).¹

         But where applicable law permits a town or village justice to take a deposition, administer and oath and/or take an acknowledgment in his/her judicial capacity (compare CPLR 3113[a][1]; 2309[a]; Real Property Law § 298 with Russell v Board of Elections, 45 NY2d 800 [1978]), we conclude it is ordinarily ethically permissible to do so, unless the justice is improperly using this authority to further private interests (see 22 NYCRR 100.2[C]; cf. Opinion 90-161).

         We therefore conclude this judge may administer oaths or acknowledgments on documents within the geographical limits of the county for any bona fide purpose as permitted by law. An otherwise permissible good-faith authentication of a document does not become improper merely if it is submitted in litigation.

         We note some language in the above-referenced Commission decision might be read to imply that a town justice does not have any inherent power to take a deposition, administer an oath and/or take an acknowledgment in his/her judicial capacity, especially if there is a possibility the document may later be submitted to a court. We assume the Commission did not mean to create that impression, as it does not appear to be the basis for the Commission’s findings of misconduct.

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¹Even judges who are notaries should carefully review Opinion 15-145 before witnessing signatures or authenticating petitions for other candidates, as such conduct may easily cross the line into impermissible political activity.