Opinion 22-147

October 27, 2022

Digest:     Where a judge has made a statutorily required allocution concerning an unrepresented tenant’s potential claims and defenses, and the tenant says they do not understand them, there is no ethical impropriety in offering the tenant a document prepared and posted by the Unified Court System for public information, entitled “Common Defenses in a Landlord-Tenant Case.” However, the judge should not recommend any particular defense listed.

Rules:       RPAPL 746(2)(c)(iv); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(12); Opinions 22-15(A); 19-03; 18-114; 14-87; 10-27; 09-02; 04-14; 99-82; 97-76.

Opinion:

           The inquiring town justice, who presides in landlord/tenant cases, is aware of RPAPL 746(2)(c)(iv), which states:

"No stipulation required to be on the record by subdivision one of this section may be approved by the court unless the court first conducts an allocution on the record that ... (c) shall further find: ... (iv) that the unrepresented party is aware of and understands claims or defenses he or she may have in the proceeding and is aware of the available options in light of those claims or defenses, especially where the stipulation provides for a surrender of the dwelling unit or the conversion of a nonpayment proceeding into a holdover proceeding."

Accordingly, the judge plans to inquire about claims and defenses as required by the statute. If an unrepresented respondent/tenant says they do not understand their potential claims and defenses, the judge asks if it is ethically permissible to offer the tenant a document entitled "Common Defenses in a Landlord-Tenant Case," which is posted on the court system's public CourtHelp website (https://nycourts.gov/courthelp/Homes/LTdefenses.shtml).¹ The judge notes this document is "readily available" on the court's website, and that it "explains ... the defenses to a Nonpayment Case as well as a Holdover Case."

           A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]), and must "respect and comply with the law" (id.). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), but may "make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard" (22 NYCRR 100.3[B][12]).

           While the present inquiry presents a novel question, our prior opinions have permitted judges to make available certain kinds of information to litigants, where doing so does not create an appearance of impropriety.

           For example, we have advised that judges may inform litigants of all their legal options, as long as they do not suggest or recommend any specific action (see Opinion 99-82). Similarly, judges may inform unrepresented litigants about certain basic procedural obligations (see Opinion 19-03 [while judge must not email government agencies to obtain evidence in a matter involving an unrepresented tenant, the judge may "alert the tenant that certain evidence must be obtained by subpoena, or explain the content and form of a valid subpoena, or assist the litigant in determining the address to which the subpoena may be sent"], citing 22 NYCRR 100.3[B][12]).

           We have also said judges may make available educational pamphlets or brochures in the courtroom, where doing so does not impermissibly promote private interests, make recommendations, improperly take on the role of an advocate or legal advisor, or otherwise create an appearance of impropriety (compare e.g. Opinions 97-76 [county-prepared pamphlet "describing the work of the Surrogate's Court"]; 04-14 [brochures promoting a not-for-profit mediation organization's services] with Opinion 10-27 [judge "may not endorse or promote education programs offered by a particular company"]). Similarly, a judge may make available in their courtroom "a list of domestic violence organizations which provide legal services to victims of domestic violence," provided the judge makes clear it is not "an official recommendation of the court" and does not recommend any particular organization (Opinion 09-02; see also Opinions 18-114 ["list of attorneys who are on the assigned counsel panel and are willing to represent litigants on a sliding fee scale," with appropriate disclaimer]; 14-87 [list of resources for help with alcohol and drug addiction]).

           Clearly, if a statute requires a judge to conduct an allocution of an unrepresented respondent/tenant's potential claims and defenses, the judge may do so (see e.g. Opinion 22-15[A] ["a judge who makes a good-faith legal determination based on apparently controlling legal authority is necessarily acting ethically"]). In the event that an unrepresented tenant states that they do not understand their potential claims and defenses, we see no ethical impropriety in the judge's proposal to offer the tenant a document prepared and posted by the Unified Court System for public information, entitled "Common Defenses in a Landlord-Tenant Case." We note that this particular document says it offers "examples of defenses in a landlord-tenant case" and instructs the reader to "[r]ead the explanations carefully to see if any of them apply to you." In providing this list of common defenses, however, the judge should not recommend any particular defense listed.

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¹ The CourtHelp home page is directed specifically to unrepresented litigants, offering to “help you when you don’t have a lawyer” and explaining that it is “constantly being updated to reflect changes in the law” (nycourts.gov/courthelp). Relatedly, we note that the judge may consult with the Access to Justice office for more information (ww2.nycourts.gov/ip/nya2j).