Opinion 24-162
October 30, 2024
Digest: (1) When a supervising judge
receives an ex parte communication from a guardian ad litem in a pending case
that expresses the view that a judge under the supervising judge’s supervision
is applying an incorrect legal standard in the case, the supervising judge may
not serve as a conduit for this ex parte communication.
(2) The supervising judge may, if he/she wishes, respond to the ex parte
communication by reminding the guardian ad litem that it is the responsibility
of the parties or their representatives to bring legal authorities to the
attention of the judge presiding in the matter, on notice to the other
parties.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(6); Opinions 17-135; 15-50.
Opinion:
The inquiring judge supervises the judges of a specialized court and also the pool of approved guardians ad litem (GALs) who appear on behalf of litigants in that court.[1] One GAL recently emailed the inquirer about a case pending before Judge X, in which the non-attorney GAL is appearing on behalf of a party and the other parties are represented by counsel. The GAL did not copy opposing counsel or Judge X on the email, but instead emailed only the inquirer -- Judge X’s supervising judge -- directly. According to the email, Judge X directed the GAL to take a particular step that the GAL believed was unusual and inappropriate. The supervising judge concurs with this view and believes that an appellate decision precludes the GAL from taking the step as directed. The supervising judge would like to find an appropriate way to address the GAL’s concerns. Accordingly, the judge asks if it is ethically permissible to “communicate directly with [Judge X] about it without the involvement of counsel for the other parties.” If so, the supervising judge further asks if he/she is “limited in what [he/she] can say” to Judge X.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Among other things, a judge must “respect and comply with the law” (22 NYCRR 100.2[A]), must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), and must “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law” (22 NYCRR 100.3[B][6]). Similarly, a judge must not “lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge” (see 22 NYCRR 100.2[C]).
Here, the supervising judge has received an ex parte communication from a GAL who is appearing on behalf of a party in a pending matter which is properly before Judge X. The communication expresses a view that Judge X is asking the GAL to do something the GAL does not agree with, and possibly applying an incorrect legal standard. Notwithstanding that both Judge X and the GAL are subject to supervision by the inquiring judge, and notwithstanding that the supervising judge concurs with the GAL and believes Judge X is acting in ignorance of a binding appellate precedent, this is not a proper situation for the supervising judge to intervene in the matter. In our view, it would be difficult, if not impossible, for this supervising judge to pass along the GAL’s concerns to Judge X without improperly assuming the role of an advocate in the case and/or serving as a conduit for an impermissible ex parte communication between the GAL and Judge X. It would, at the very least, create an appearance of impropriety (cf. Opinions 17-135; 15-50).
We note that it is the role of the parties or their representatives in the case to bring to Judge X’s attention relevant legal authorities through regular channels. This allows each side to review and consider the other side’s arguments and authorities and to respond to them, so that Judge X can make a determination. Accordingly, the inquiring judge may, if he/she wishes, remind the GAL that it is the GAL’s responsibility, as representative for a party, to bring relevant legal authorities to the attention of Judge X and opposing counsel.
[1] The Unified Court System recruits and trains GALs for this court, to provide judges with a pool of GALs they may appoint to help safeguard the rights of vulnerable litigants. The pool includes both attorneys and non-attorneys.