Opinion 18-74

June 21, 2018

Digest:         When an administrative judge learns that a full-time judge, in his/her capacity as a parent, has provided legal advice to other parents and impermissibly commented on pending litigation beyond the bounds of the judge’s own direct, personal interest in his/her minor child’s education, the administrative judge (1) must take appropriate action but (2) has full discretion to determine what action is appropriate under the circumstances.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.3(D)(1); 100.4(A)(1)-(3); 100.4(G); Opinions 16-153; 16-46; 15-100; 13-146; 13-71; 13-69; 13-38; 12-166; 12-162; 12-143; 10-175; 09-190; 09-12; 08-176; 07-178; 98-118; 92-13.

Opinion:

         An administrative judge is aware of documents evincing actions of another full-time judge under his/her supervision. The other judge is the parent of a school-aged child whose school district is involved in litigation. Although the judge and child are not parties and have not sought permission to intervene, the litigation may directly affect the child’s education, as one side seeks to transfer certain teachers from the school, including the judge’s child’s teacher. The judge strongly opposes the transfer and has made numerous public statements to this effect by (a) submitting an affidavit in the litigation as a parent, (b) posting replies to an online news editorial, (c) participating in protests at the school, and (d) participating in discussions on social media with other parents. Although these comments do not allude to his/her judicial status, in at least one instance, a website displayed his/her job title based on a field in the judge’s online profile.

         In online forums, the parent-judge has repeatedly given legal advice to other parents about the appropriate legal standard which should be quoted in their correspondence. When others did not adopt the judge’s suggestions, he/she publicly posted advice about strategy for affecting the course of the litigation. The judge’s strategy advice was directed to another parent and certain news outlets visible also to the public. This judge also offered to “find out” the next court date for other parents, so “[w]e can go.”

         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]). Thus, a judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]). 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]) and must conduct his/her extra-judicial activities so they do not detract from the dignity of judicial office, cast reasonable doubt on the judge’s capacity to act impartially as a judge, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Generally, a judge must not publicly comment on pending or impending litigation in the United States or its territories (see 22 NYCRR 100.3[B][8]). However, this does not apply to cases where the judge is “a litigant in a personal capacity” (id.). Finally, a full-time judge is prohibited from practicing law but “may act pro se” or give uncompensated legal advice to a member of his/her family (22 NYCRR 100.4[G]).  

Overview of Key Principles

         We begin by reviewing the applicable principles to assess the inquiring administrative judge’s disciplinary obligations and help him/her to advise the other judge going forward.

         Clearly, a judge who has a child “does not forfeit his/her rights or responsibilities as a parent” (Opinion 07-178; see also Opinions 16-153; 13-38; 12-143). Thus, in Opinion 13-38, we advised that a judge may, in his/her capacity as a parent, express his/her concerns about the conduct of his/her child’s public school teacher by, among other things, signing a petition addressed to the principal, along with other parents, and writing to the principal about the teacher, without invoking his/her judicial status. A judge with relevant personal knowledge also may voluntarily provide a factual affidavit or otherwise testify as a fact witness (see Opinion 98-118).

         A judge who is not formally a party to litigation but, nonetheless, concludes the litigation directly affects a clearly identifiable, personal interest – such as, in this instance, the possible transfer of the judge’s school-aged child’s teacher – must exercise great caution if he/she wishes to comment publicly on the litigation. First, the judge’s comments should, to the extent reasonably practicable, focus narrowly on his/her direct personal interest, rather than on broader issues. Here, the judge’s comments, if any, should focus on his/her minor child’s educational interests, which may be affected by the proposed transfer of the child’s teacher. Second, the judge must “scrupulously avoid personalizing the comments, refrain from invective, and be objective and dispassionate in the commentary, so as not to detract in any way from the dignity of judicial office and to uphold the judicial process” (Opinion 92-13). Third, in making any permissible comment on the subject of litigation affecting the judge’s child, the judge may not invoke his/her judicial status.

         A judge must take particular care when commenting in an online forum to ensure his/her profile will not reveal a judicial status (see Opinion 08-176 [a judge choosing to use an Internet-based social network should stay abreast of the service’s features, as new developments may impact his/her ethical obligations]). And, of course, even if a judge’s comments are ethically permissible, he/she should carefully consider whether making the statements is “nonetheless an unwise course” (Opinion 15-100 [internal quotation marks and citation omitted]).

         Most significantly, the exceptions permitting a full-time judge to appear pro se in litigation and otherwise advance his/her direct personal interests do not permit him/her to provide legal advice to similarly situated individuals. For example, in Opinion 09-12, we advised that although a judge who owns a condominium unit may act pro se to assert his/her personal rights as an individual owner in an action against the condominium board, the judge “may not give legal advice to or otherwise represent other condominium owners” and must “avoid any appearance that he/she is leading or advising the other condominium owners in making litigation decisions, even though their property interests and the judge’s property interests appear to be identical.” We also conclude a parent-judge may assert his/her views and direct personal interests on the proposed transfer of his/her child’s teacher, but must not give legal advice to other parents. The judge should also avoid an appearance that he/she is leading or advising the other parents concerning the litigation or commenting more broadly on the transfer of other teachers in the school with no connection to the judge’s child. This remains true even if the other parents are similarly situated to the judge and even if the other teachers are similarly situated to the judge’s child’s teacher.

The Administrative Judge’s Disciplinary Obligations

         The inquiring judge is ordinarily in the best position to decide if there is a “substantial likelihood” another judge has committed a “substantial violation” of the Rules, “given the context in which the conduct occurs” (Opinion 09-190). If he/she concludes either of these two elements is missing no action is required(see Opinion 12-166). If the judge concludes there is a substantial likelihood another judge engaged in a substantial violation of the Rules, the action he/she must take will depend on the nature of the misconduct (see Opinion 13-146). Thus, if it is so serious as to call into question a judge’s fitness to continue in office, the judge must report it to the Commission on Judicial Conduct (see Opinions 13-71; 13-69). But, if the misconduct, though substantial, is not that serious, the judge has the discretion to take other, less severe action than reporting the conduct to the Commission (see Opinions 13-71; 13-69).

         As we have previously noted, the Committee “cannot judge the credibility of conflicting allegations and is not empowered to do so” (Opinion 12-162 [citation and ellipses omitted]). However, based on this inquiry, it appears the administrative judge has received documents evidencing the parent-judge’s public involvement in a litigation which could result in transfer of several teachers perhaps including the judge’s child’s teacher. That is, the administrative judge has received apparently reliable information about conduct that apparently exceeds the bounds of the parent-judge’s own direct, personal interest in the education of his/her minor child. As we noted, the parent-judge’s public comments and advocacy in this litigation, if any, should be limited so that the public will readily perceive that the judge is acting solely on behalf of his/her own direct, personal interests.

         Instead, the parent-judge’s actions appear to create an impression he/she was (a) providing legal advice to other parents by advising them to use language the judge identified as the necessary “legal standard” and (b) organizing and taking a leadership role with respect to other parents and students to influence a litigation to which they are not parties and which would affect several teachers who have no connection with the judge’s child. Ironically, the parent-judge’s offer to “find out” the date of an upcoming court appearance for the other parents could create a public perception that the judge would use his/her judicial status to obtain court-related information for them, even though the information is a matter of public record. Finally, these issues were exacerbated by the appearance of the parent-judge’s judicial title in connection with one or more of his/her comments.¹

         Accordingly, we believe the two-prong test is met here, and the administrative judge must therefore take “appropriate action” concerning the parent-judge’s activities (22 NYCRR 100.3[D][1]).

         As explained in Opinion 16-46 n 2 (ellipses, brackets, and citations omitted):

In general, “what determines ‘appropriate action’ depends upon all the surrounding circumstances known to the judge, including an assessment of whether the individual, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the individual has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge.” Appropriate action could include, for example, “dealing with the matter administratively,” “discussing with the other judge the possibility of a treatment program and/or making a suitable referral thereto,” or “discussing the situation with the other judge and counseling him/her on the ethics of the claimed inappropriate conduct and then deciding what if anything else should be done depending on the judge’s response to such advice.”

         Although there have been instances “where conduct described in an inquiry ..., if true, clearly called into question another judge’s fitness to continue in office and, therefore, at the very least, warranted an investigation” by the Commission on Judicial Conduct (Opinion 10-175), we believe this is not such a case. That is, the administrative judge may, but is not ethically required to, report the other judge to the Commission.

         Here, we believe the administrative judge is in the best position to assess the parent-judge’s motivations and receptiveness to guidance about his/her ethical responsibilities going forward. Thus, he/she (1) must take appropriate action but (2) has full discretion to determine what action is appropriate under the circumstances.

Comment on Privacy in Social Media

         While online forums such as twitter, Facebook, and a newspaper’s online public comments section may offer users different levels of privacy controls, the present inquiry reminds us that any online communications may potentially be forwarded, captured in a screen-shot, or printed out. Unless the other participants have a legal or ethical obligation to maintain the judge’s confidences, we would urge judges to assume that their online communications are not private and tailor them accordingly. We also recommend that judges exercise caution if they wish to include their judicial title in an online profile.

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¹ We do not comment on the parent-judge’s apparent participation in certain protests and/or meetings, as the inquiry provides insufficient factual detail.