Opinion 20-16

January 30, 2020

Digest:         On these facts, a judge who learns a non-judge court employee engaged in multiple ex parte conversations with one side in an ongoing contested matter before the judge, and attempted to assist that side by using his/her special access as a court employee to provide insider information and advice, must (1) report the situation to appropriate court administrators, (2) direct the employee to be insulated from further case contact, (3) disclose the incidents the judge has become aware of to the lawyers and parties on the record, and (4) direct the lawyers to admonish their clients not to engage in ex parte communication about the case with court personnel.

Rules:          22 NYCRR 50.1 (Preamble); 50.1(I)(B); 50.1(I)(E); 50.1(II)(D); 100.2(A); 100.2(C); 100.3(C)(2); Opinions 15-189; 08-99.

Opinions:

         While presiding in an ongoing contested case, the inquiring judge learned that a nonjudicial court employee engaged in multiple ex parte communications with one side of the case; used his/her special access as a court employee to provide them with information not otherwise accessible to litigants or the public; and provided other improper assistance including advice on how to proceed, sharing sensitive documents from the court file and filing documents for them. The employee is neither the judge’s personal appointee nor an attorney. The judge does not know the precise content of the ex parte communications, and is confident he/she can fairly and impartially preside without considering the employee’s misconduct.

         Although the judge reported the misconduct to court administrators and was assured the issues were addressed, the judge is unaware if the employee was insulated from further contact with the case. The judge asks if he/she must take further action, such as disclosing the situation to the parties and counsel.

         A judge must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not “convey or permit others to convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]). Moreover, a judge “must require” staff, court officials and others subject to his/her direction and control to “observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]). Although the ethics rules for nonjudicial court employees are not identical to those governing judicial conduct, they are indeed meant to “inspire public confidence and trust in the fairness and independence of the courts ... so... the court system can fulfill its role as a provider of effective and impartial justice” (22 NYCRR 50.1 [Preamble]).¹

         As “Section 100.3(D) imposes no disciplinary duties on a judge who learns of inappropriate or illegal conduct by an individual who is not a lawyer or a judge,” we believe “misconduct by court personnel can, under some circumstances, undermine public confidence in the integrity and impartiality of the judicial system itself” (see Opinion 15-189, quoting Opinion 08-99).

         Here, the judge learned of a nonjudicial court employee’s extensive and extraordinary misconduct to further the interests of one side in a judge’s ongoing contested case. One party is obviously aware of the misconduct, and may erroneously believe he/she is in a special position to influence the judge (cf. 22 NYCRR 100.2[C]). Meanwhile, the lawyers and the other party are presumably unaware of the misconduct and thus cannot assess whether they can or should take any steps to protect their or their clients’ interests. These facts cause us to believe the judge must take action to protect public confidence in the court’s impartiality and independence. Indeed, the judge must, to the extent not yet done: (1) report the situation to appropriate court administrators, (2) direct that the employee be insulated from further contact with the case, (3) disclose on the record the incidents brought to the judge’s attention to the lawyers and parties on the record, and (4) direct the lawyers to admonish their clients not to engage in ex parte communications about the case with court personnel. As always, the judge has discretion to make further permissible disclosures or directives if he/she wishes, and may assure the parties and counsel he/she can continue to be fair and impartial.

         We decline the judge’s invitation to provide a script for the required disclosure.

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¹ Thus, for example, nonjudicial court employees must avoid both impropriety and its appearance (see 22 NYCRR 50.1[I]); must “not use or attempt to use their positions … to secure privileges or exemptions for themselves or others” (22 NYCRR 50.1[I][B]); must “not perform any function in a manner that improperly favors any litigant or attorney” (22 NYCRR 50.1[I][E]); and must “not disclose any confidential information received in the course of their official duties, except as required in the performance of such duties” (22 NYCRR 50.1[II][D]).