September 10, 2020
Digest: A judge who appointed a receiver in a now-concluded case may not, either at the receiver’s request or on his/her own initiative, intervene or support the receiver’s petition for representation by the Attorney General’s office in a civil lawsuit alleging the receiver committed fraud. However, if the AG’s office contacts the judge concerning the receiver’s application, the judge may properly respond to questions within his/her personal knowledge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinion 14-33.
The inquiring judge appointed a receiver in a now concluded case. The defendant recently sued the receiver and many other participants in the case. As relevant here, the defendant “claims therein that the receiver acted fraudulently in [his/her] capacity as receiver.” The receiver will be petitioning the Attorney General’s office to undertake his/her legal defense, and wishes to advise the AG that the judge “supports” the application. The judge asks if he/she may consent to the receiver’s request or, alternatively, write an independent letter to the AG “stating that if the law provides for representation of a court-appointed receiver, then it would be appropriate for them to do so.”
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]). Therefore, a judge must not lend the prestige of judicial office to advance private interests or testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).
As we explained in Opinion 14-33 (citations omitted):
In applying Section 100.2(C), the Committee has distinguished between “a strictly private situation, e.g. a letter of reference on behalf of a job applicant known to the judge,” and a letter supporting an individual’s application to a government agency “to make a decision with substantial public implications.” In the latter situation, much greater caution is needed to avoid creating an appearance that the judge is voluntarily testifying as a character witness or improperly lending the prestige of judicial office to advance private interests before a government agency.
Here, too, we believe the receiver’s application primarily involves the receiver’s personal interest in persuading the AG’s office to undertake his/her legal representation and spare him/her the expense of privately retained counsel. While we recognize the receiver’s plight, we believe the judge must not, either at the receiver’s request or on his/her own initiative, intervene or support the application. Of course, if the AG’s office contacts the judge concerning the application, he/she may properly respond to questions within his/her personal knowledge (see id. [“Responding to a government agency’s request for information about an applicant does not raise the same concerns that the judge is voluntarily testifying as a character witness or improperly lending the prestige of judicial office to advance private interests before a government agency”]).