Opinion 24-175

December 12, 2024

Digest:  Assuming it is legally permissible, a judge may direct parties in a child custody proceeding to communicate through a software application that records the users’ communications and charges them a fee.  Where more than one such software application provides the same services, the judge must provide a list of available applications instead of referring the parties to a specific named application.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(7); Opinions 19-52; 13-191; 10-124; 10-27; 09-174.

Opinion:

          The inquiring administrative judge is aware of a specific software application that charges the parties a fee and automatically records the parties’ communications.  The judge asks if it is ethically permissible for judges under his/her supervision to direct parties in contentious child custody matters to communicate with each other using that application.  In the alternative, the judge asks if it is ethically permissible to order the parties to use “a communication app such as” the one the inquiring judge is aware of, without specifying which one to use. 

          A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must be faithful to the law (see 22 NYCRR 100.3[B][1]) and dispose of matters promptly, efficiently, and fairly (see 22 NYCRR 100.3[B][7]).  In doing so, however, the judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).

          Judges may not actively or tacitly promote the products or services of any organization (see Opinions 10-124; 09-174).  “This rule is ‘particularly strict’ with respect to products and services offered by a for-profit entity, because a judge is prohibited from lending the prestige of judicial office to advance private interests” (Opinion 10-124 [citation omitted]).

          Thus, where a judge would like to offer defendants the opportunity to complete an educational program in order to earn a reduction or dismissal of pending charges, we have said the judge may not “endorse or promote” one specific company’s programs, but must instead provide a “list of possible programs” that defendants may choose to complete as part of an agreement to reduce or dismiss charges (see Opinion 10-27).  Only if no other appropriate programs exist may the judge simply provide the defendant with an information sheet about that specific company (id.; see also Opinions 19-52 [“to the extent the center’s restorative justice program is a specialized program, not offered by other local entities, such referrals are ethically permissible”]; 13-191 [“where more than one program is available for the same class of offenders, the judge should provide a list of the available programs instead of referring a defendant to one specific program”]). 

          While we cannot comment on any legal issues that may be raised by such an order, we conclude that it is ethically permissible for a judge, in his/her discretion, to order the parties in a child custody proceeding to use a communication application that automatically creates a record of the parties’ communications.  Where more than one such software application is available that provides the same services, the judge must provide a list of the available applications instead of referring the parties to a specific program.