Opinion 23-232

February 1, 2024

Digest:  Whether materials sought by the Commission on Judicial Conduct are shielded by attorney-client privilege presents a legal question beyond our jurisdiction.

Rules:   CPLR 4503; 22 NYCRR 100.2; 100.2(A); 100.3(C)(1); Opinions 20-72; 19-79; 08-62; 07-192; 04-123.

Opinion:

          A judge asks if it is ethically permissible to respond to an inquiry from the Commission on Judicial Conduct concerning the judge’s prior legal work as an attorney on a case that settled before the judge assumed the bench.  The requested information, as described by the judge, “could require” the disclosure of confidential and privileged information about the prior attorney relationship (cf. CPLR 4503).

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must “respect and comply with the law” (id.) and “should cooperate with other judges and court officials in the administration of court business” (22 NYCRR 100.3[C][1]).

          We have declined to address an inquiry “where the ethical issues raised within the inquiry are couched within larger legal issues which must first be determined by the inquiring judge” (Opinion 08-62).  In particular, whether particular information or materials are protected by the attorney-client privilege “is a legal question, not an ethical one, and thus we cannot address it” (Opinion 20-72; see also Opinions 19-79 [“We do not address any legal questions, including whether there is any legal obstacle to disclosing the requested materials”]; 07-192 [judge should not disclose information judge deems falls within attorney-client privilege]; 04-123 [issue of attorney-client confidentiality “presents a legal question, not a question of judicial ethics”]).  Consistent with these precedents, we decline to answer the inquiry.