Opinion 24-128
September 12, 2024
Digest: A judge may not write a letter in support of an attorney who faces discipline from an assigned counsel panel for violation of the panel’s rules and directives.
Rules: 22 NYCRR 100.2; 100.2(A), (C); Opinions 23-234; 18-138; 16-41; 10-188; 05-34; 90-156; 89-73; 88-63.
Opinion:
The inquiring judge has been asked by an attorney to write a support letter in favor of the attorney’s client (the “respondent”), who faces disciplinary action by the assigned counsel panel for alleged violations of the panel’s rules and directives. The crux of the complaint is that the respondent allegedly maintained an excessive caseload, refused to comply with the panel’s directive not to take new cases, and concealed the size of his/her assigned caseload in defiance of the panel’s directive. Further, the complaint alleges that respondent’s large caseload violated applicable rules, policies, and standards and resulted in clients’ being incarcerated for lengthy periods. The panel has not reached out to the judge directly. However, the attorney gave the judge a copy of a letter he/she received from the panel. That letter, addressed to the attorney, indicates that if a judge “has agreed to write a letter” on behalf of the respondent and the judge has “information relevant and directly responsive to the allegations in the disciplinary action,” then respondent’s attorney may “provide this letter” to the judge, who in turn may “consider it a request by the [panel] for such information.”[1] On these facts, the judge asks if it is permissible to respond with a letter to the panel solely concerning the respondent’s work and conduct during appearances before the judge.
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 independence (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests nor “testify voluntarily as a character witness” (22 NYCRR 100.2[C]).
In applying these rules, we have consistently advised that a judge may not provide a character reference letter or testimony on behalf of the subject of a disciplinary proceeding at the request of the respondent or the respondent’s counsel, or even on the judge’s own initiative (see Opinion 23-234, citing Opinions 16-41; 10-188; 05-34; 90-156; 89-73; 88-63). “Rather, a judge may only do so in response to a subpoena or at the direct request of the disciplinary authority or other appropriate governmental agency” (id.). We have further advised that a judge “may authorize the attorney to tell the disciplinary committee that it may contact the judge concerning the matter” (Opinion 16-41). Should the judge be subpoenaed or contacted directly by the disciplinary committee, we cautioned the judge to refrain from offering an opinion regarding an appropriate sanction “unless specifically directed to by the disciplinary committee or by subpoena” (id.).
We note that the issues in the assigned counsel panel’s disciplinary action, as described, do not involve “the respondent’s work and conduct during his/her appearances before [the] judge” or indeed any other matters the inquiring judge has personally observed. To the contrary, it appears to focus on facts unlikely to be within the personal knowledge of any trial judge, such as the overall number of assigned cases undertaken by the respondent and the respondent’s compliance or non-compliance with applicable rules, policies, or directives of the assigned counsel panel.
In our view, the panel’s letter to respondent’s counsel is not a “direct request,” and does not support the exception that allows judges to respond where “specifically directed by the disciplinary committee or subpoena” (Opinion 23-234). Further, the letter to respondent’s counsel makes clear that the request is confined to “information relevant and directly responsive to the allegations in the disciplinary complaint.” Again, the issues in the complaint relate to the respondent’s compliance with the panel’s rules and policies regarding the assigned caseload and compliance with panel directives and there is nothing to suggest the inquiring judge has any first-hand information concerning these allegations.[2]
Accordingly, on the facts presented, the judge must decline counsel’s request to submit a letter of support for the respondent.
We note that if the panel does in fact seek the inquiring judge’s insights on any aspect of the respondent’s appearances before the judge or the quality of respondent’s representation of indigent clients, then the panel may make that request directly to the judge and the judge may respond consistent with our prior opinions. Likewise, respondent’s counsel remains free to advise or remind the panel that it may directly contact the inquiring judge with any such request.
[1] The letter expresses the view that a direct request to the judge is unnecessary and denies that the panel is demanding “any information from any judge” pertaining to the respondent.
[2] Clearly, this is not the rare instance where an inquiring judge has directly relevant first-hand knowledge of material facts underlying the disciplinary proceeding and may therefore testify voluntarily as a fact witness (see Opinion 18-138).