Opinion 17-176

December 7, 2017

Digest:         Before seeking ethics advice on how to interact with unrepresented litigants, a New York City Housing Court judge should first consult with his/her supervising or administrative judge concerning applicable policies, procedures, and resources.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(4); 100.3(B)(6)(c); 100.3(B)(12); 101.1; Opinions 17-110; 16-68; 99-148.

Opinion:

         A New York City Housing Court judge, who regularly presides in matters where defendant tenants appear pro se while plaintiff owners or landlords are represented by counsel, asks: “What information may I [provide] to unrepresented litigants about their litigation choices and what parameters guide how I may solicit oral answers (which is often a necessity)?”

         The judge provides two examples to help illustrate and focus the question. First, the judge requests guidance on interacting with unrepresented tenants in holdover proceedings, as court administrators have made official forms available to help tenants answer complaints in nonpayment proceedings, but not holdover proceedings. In this regard, the judge notes that a civil court directive affirmatively requires court attorneys to “ascertain [unrepresented tenants’] response and defenses to the allegations [in the holdover petition] and flag them for the judge” (http://www.nycourts.gov/courts/nyc/ssi/

directives/drp/drp195.pdf). Second, the judge would like guidance on interacting with unrepresented litigants who appear before him/her, often ex parte with the knowledge and consent of plaintiff’s counsel, to request approval of a proposed settlement agreement.¹ Specifically, the judge asks if he/she may inform the unrepresented tenant at this stage about the possible remedy of contempt if the landlord defaults.

         An independent and honorable judiciary “is indispensable to justice in our society” (22 NYCRR 100.1). Therefore, 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 “perform judicial duties without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]). Nevertheless, the Rules also permit “a judge to make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard” (22 NYCRR 100.3[B][12]).

         In this regard, we understand that court administrators strive to set policies and procedures to ensure fairness to unrepresented litigants without prejudicing other parties or otherwise compromising the appearance and reality of judicial impartiality. The above-referenced civil court directive and official forms for unrepresented litigants appear to be examples of such administrative policies in action.

         Interactions with unrepresented litigants, whether at the settlement stage or otherwise, may raise ethical implications, such as the risk of actual or apparent partiality or coercion (see e.g. Opinions 17-110; 99-148). Here, however, we believe the inquiry is premature, as there are critical administrative questions of policy and procedure that must be addressed first.

         Again, we note that the template forms and the directive submitted by the inquiring judge both originated with court administrators, in light of their knowledge and experience with court operations and recurring substantive legal issues in Housing Court. This surely reflects, at the very least, an administrative determination that unrepresented litigants should be treated similarly, regardless of which Housing Court judge is assigned to the case. We thus conclude this judge should first consult his/her supervising and/or administrative judge about the questions presented, to create uniform policies and procedures throughout the New York City Housing Court.

         It is not our mandate to establish policies and procedures for interacting with unrepresented litigants in the various courts and contexts in which they may appear. Once such policies and procedures are properly established, however, the judges may then consult us about specific ethics issues which may arise in particular factual circumstances (see generally 22 NYCRR 101.1; Judiciary Law § 212[2][l]).

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¹Apparently, it is “exceedingly common and accepted” for owners’ attorneys to impose the entire burden of seeking approval on the unrepresented tenant, thus voluntarily absenting themselves from allocution of the stipulation, “due to the volume of cases” the attorneys are handling. If so, we believe they have impliedly consented to the resulting ex parte communications (see 22 NYCRR 100.3[B][6][c]; Opinion 16-68 fn 2).