Opinion 22-85

May 5, 2022

Digest:    Where a judge believes an attorney may be engaging in unprofessional and/or unethical conduct that is causing unnecessary delays and disruption to court proceedings, but lacks substantial first-hand knowledge of the alleged misconduct, the judge is not required to take any action, but may do so in the judge’s discretion. The propriety of a judge’s determinations about granting continuances, entering scheduling orders, and sanctioning clients are legal questions beyond our authority to address. However, the judge may not engage in impermissible ex parte communications by sending a letter exclusively to an attorney on one side of the case cautioning them that their requests for continuances will be carefully monitored and subject to scrutiny.

Rules:     Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(D)(2); 22 NYCRR 101.1; Opinion 20-201.

Opinion:

         On assuming the bench, the inquiring part-time judge inherited a large backlog of unresolved cases, which the judge attributes to “the failure of private defense counsel to appear for scheduled conferences.” At the judge’s first court session, over a dozen attorneys neither appeared nor requested a continuance. Some matters have been deferred multiple times after an attorney requested “4 to 6 continuances” in the same case, even when that attorney “selected the new date at the last continuance.” Accordingly, the judge asks if it is ethically permissible to take some or all of the following steps:

1.       Limit the number of continuances that any case can receive and insist on the appearance of counsel where that number is exceeded, except “in cases of health emergency or actual appearance in another court, ... proved by an affidavit signed under the penalties of perjury.”

2.       Enter a scheduling order on the joining of issue in any case, setting specific dates for pretrial conferences and trial with the caveat that these may be changed within reason but that the case must be disposed of by one year from the date that it is filed.

3.       Send “a personal letter” ex parte to abusive defense counsel, “indicating that their particular requests [for continuances] will be carefully monitored and subject to scrutiny by the Court.”¹

4.       Where the abusive counsel represents a plaintiff, sanction the client for abuses of continuances by their counsel.

Finally, the judge also asks for “ideas outside my suggestions” to deal with the situation.

         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]). Thus, a judge must not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding (see 22 NYCRR 100.3[B][6]). In addition, if a judge receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]).

         The propriety of the judge’s proposed actions with respect to granting continuances (item 1), entering scheduling orders (item 2), and sanctioning clients (item 4) hinges on legal questions beyond our authority to address. As we may answer only questions concerning judicial ethics (see generally 22 NYCRR 101.1; Judiciary Law § 212[2][l]), we must decline to comment on these proposed actions.

         With respect to the judge’s proposed ex parte letter to certain defense counsel cautioning them that their requests for continuances “will be carefully monitored and subject to scrutiny” (item 3), the communication would clearly relate to issues in specific pending or impending cases. We conclude this is an inappropriate ex parte communication under 22 NYCRR 100.3(B)(6), as it does not fit within any of the authorized exceptions.

         Finally, on the facts presented, the judge is concerned that certain attorneys may be engaging in unprofessional and/or unethical conduct that is causing unnecessary delays and disruption to court proceedings. We therefore address the judge’s potential disciplinary obligations under Section 100.3(D)(2). Although the judge has full discretion to take any appropriate action to address this situation, we have advised that where a judge has no direct personal knowledge about purported misconduct of an attorney, the judge has wide discretion in making the threshold determination whether there is a “substantial likelihood” of a “substantial violation” of the Rules of Professional Conduct (see e.g. Opinion 20-201). Moreover, the judge has no duty to investigate.

         Here, it appears from the inquiry that the judge’s first-hand knowledge of the attorneys’ potential ongoing misconduct is limited to their failure to appear on a single occasion. Moreover, the judge need not necessarily fault an attorney for having previously sought and obtained multiple legally authorized adjournments in a case from the judge’s predecessor, even if the judge’s predecessor perhaps applied different criteria for granting adjournments than the inquiring judge will. Thus, on the facts presented, we conclude that the judge does not have an ethical obligation to take action against the attorneys pursuant to Section 100.3(D)(2) at this time.

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¹ The judge wishes to send the letter ex parte “to avoid giving the prosecution an advantage against the defense.”