June 18, 2020
Digest: A court-attorney referee may set up an email auto-response to provide general legal and ethical information to unrepresented litigants and others, provided the message is consistent with the Rules Governing Judicial Conduct. However, the referee should not refer to him/herself as a “jurist” in this auto-response message.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3; 100.3(B)(6); 100.3(B)(8); 100.3(B)(12); 100.4(G); 100.6(A); Opinions 19-03; 18-83; 16-155; 16-12; 16-09.
During the current public health emergency, while the public has limited in-person access to the courts, a court attorney-referee asks if he/she may use a standard e-mail auto-response to discourage impermissible ex parte communications and requests for legal assistance by delineating what communication can be responded to and/or initiated, and by identifying which units or departments litigants and attorneys may contact with specific issues.1 The referee hopes this general legal and ethical information will help facilitate conducting court business remotely by e-mail and telephone or video conference, while discouraging impermissible ex parte communications and balancing access to justice for unrepresented litigants.
Court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their quasi-judicial duties (see 22 NYCRR 100.6[A]; Opinion 18-83). Thus, they must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must perform their official duties impartially and diligently (see 22 NYCRR 100.3). They must not “make any public comment about a pending or impending proceeding in any court within the United States or its territories,” but may “explain for public information the procedures of the court” (22 NYCRR 100.3[B]). They must not “initiate, permit, or consider ex parte communications, or consider other communications made to [them] outside the presence of the parties or their lawyers concerning a pending or impending proceeding,” unless an exception applies (22 NYCRR 100.3[B]). In addition, full-time quasi-judicial officials may not practice law (see 22 NYCRR 100.4[G]). They may nonetheless make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard (see 22 NYCRR 100.3[B]).
We have said a judge may receive courtesy copies of motion papers by e-mail, but should require that all parties be copied on the e-mail (see Opinion 19-03). A judge may, and sometimes must, “take reasonable steps to discourage and limit ex parte communications” (Opinion 16-155 [noting that if an impermissible ex parte communication nonetheless occurs, it may generally be dispelled by disclosing it to all sides]). Conversely, we advised that a judge must not send a form letter to defendants who plead guilty by mail advising them, sua sponte, that they may change their plea to “not guilty” and either conference the matter with the prosecutor or negotiate a reduced plea (see Opinion 16-09).
In general, we believe a court attorney-referee may use an email auto-response function to respond to members of the public, provided the message is consistent with the Rules Governing Judicial Conduct, including the public comment rule (see 22 NYCRR 100.3[B]) and the prohibitions on ex parte communications (see 22 NYCRR 100.3[B]) and legal advice (see 22 NYCRR 100.4[G]).
Here, in particular, we see no ethical impropriety in using the email auto-response function to provide (1) general legal information identifying which units or departments litigants and attorneys may contact with specific issues, along with their contact information and (2) general information about judicial ethics, such as the limitations on ex parte communications (cf. 22 NYCRR 100.3[B] [a judge may “explain for public information the procedures of the court”]; 100.3[B]). However, the referee should not refer to him/herself as a “jurist” in his/her auto-response message to members of the public, as this could create the false impression that he/she is a judge.2 We otherwise decline to comment on the wording of the proposed message, as we are “not in a position to review, edit or otherwise approve/disapprove” judges’ or quasi-judicial officials’ particular writings (Opinion 16-12).
1 The proposed message would state: “Please be advised that pursuant to 22 NYCRR 100.3, jurists may not engage in ex parte (one side only) communication. If this e-mail pertains to a case, I will be unable to review it or respond to it unless any and all people involved in the case, including attorneys, are included in this e-mail. If you are seeking to bring a matter before the court, this may only be done by motion and not by e-mail. To file a motion, self-represented individuals should e-mail [Unit/Department Email 1] or call [Unit/Department Telephone Number]. Attorney filings should be sent to [Unit/Department Email 2]. For further information, you can contact the ______ Court by e-mail at [General Court Email] or by telephone at [General Telephone Number].”
2 In the proposed text, it appears the word “jurists” could easily be replaced with “the court,” “court attorney-referees,” “quasi-judicial officials” or “I.”