Opinion 22-46

March 10, 2022

Digest:         A judge who is experiencing apparent acts of retaliation from a self-identified “sovereign citizen” litigant may write to the county clerk on judicial stationery to advise them of the situation and request they authenticate any lien/judgment filings prior to recording.

Rules:          Judiciary Law § 212(2)(l); UCC art 9, part 5; 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 21-56; 19-81; 14-119; 88-02. 

Opinion:

         The inquiring judge is concerned that a self-styled “sovereign citizen” defendant will file fraudulent liens and judgments against them, as the litigant has already filed two disciplinary complaints in retaliation. The judge has been placed on a judicial watch list that monitors potentially fraudulent filings through the court system’s department of public safety. The judge asks if it is ethically permissible to send a letter to the county clerk on the judge’s judicial stationery “advising [the clerk] of the situation” and “requesting” that any attempts to file a lien and judgment against the judge “be authenticated prior to recording.”

         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 also may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).

         The ethical propriety of using judicial stationery depends on the circumstances (see e.g. Opinion 88-02 [judge may not use judicial stationery to apply for school scholarship for child]). However, “if a complaint is made concerning the performance of a judge’s official duties or if frivolous or fraudulent conduct is taken in retaliation against the performance of a judge’s official duties, it is ethically permissible for the judge to use certain judicial resources to respond” (Opinion 19-81 [declining comment on any legal or administrative issues]). Of particular note, we have said a judge may use judicial stationery for correspondence with the court clerk and the county clerk, among others, in connection with an expungement proceeding for a frivolous lien filed against the judge by a litigant during the pendency of a case (see Opinion 14-119).

         Here, we likewise conclude it would not be improper for the judge to write to the county clerk on judicial stationery, advising them of the situation and requesting they authenticate any filings before recording them, assuming the judge has made a good-faith legal determination that it is not unlawful to make such a request (see e.g. Opinion 21-56).¹ We note the judge proposes to send this letter as a result of certain apparently retaliatory acts by a litigant in response to the judge’s performance of their official judicial duties; it will be clear on the face of the letter that the judge’s judicial role is the sole basis for the request. Therefore, it cannot be said that the judge is improperly lending the prestige of judicial office to advance a private interest.

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¹ We can offer no comment on what the county clerk may do (see e.g. UCC art 9, part 5), but only on whether the judge may ethically make the request (see Judiciary Law § 212[2][l]).