The Volokh Conspiracy
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Unethical for Lawyers to Tell Clients Their Judges May Be Biased Based on Race, Sex, Etc.?
"The judge soon learned that, in a recorded conversation between defense counsel and the defendant, the attorney had referred to the age, race, political affiliation, and gender of the court's judges, and suggested that the court 'should look a little bit more like the people that are in front of them.' The attorney also suggested that the defendant would not receive a fair trial from the court's judges, who are a different race and gender from the defendant. Finally, the attorney used a pejorative term, drawing on racial and gender stereotypes, to refer to the complainant."
That appears to be the assumption behind N.Y. Advisory Committee on Judicial Ethics opinion 24-73, at least when "the attorney's comments are so egregious that they seriously call into question the attorney's honesty, trustworthiness, or fitness to practice law," whatever that might mean in this context; the opinion was released May 9 but just posted on Westlaw:
While the inquiring judge was presiding in a criminal matter, the defendant questioned whether he/she could receive a fair trial before any judge of the court. The judge soon learned that, in a recorded conversation between defense counsel and the defendant, the attorney had referred to the age, race, political affiliation, and gender of the court's judges, and suggested that the court "should look a little bit more like the people that are in front of them."
The attorney also suggested that the defendant would not receive a fair trial from the court's judges, who are a different race and gender from the defendant. Finally, the attorney used a pejorative term, drawing on racial and gender stereotypes, to refer to the complainant. [It appears to me that "complainant" here means the person bringing the matter before the Commission—i.e., the judge—and not the defendant. -EV] The judge found the comments "very troubling" and asks whether he/she must report the attorney.
A judge must uphold the judiciary's integrity and independence (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Further, a judge must always act in a manner that promotes public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[[A]), and must not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment (see 22 NYCRR 100.2[B]).
A judge must "require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status, against parties, witnesses, counsel or others" (22 NYCRR 100.3[B][5]). Additionally, if a judge receives information indicating a "substantial likelihood" that a lawyer committed a "substantial violation" of the Rules of Professional Conduct, that judge must take "appropriate action" (22 NYCRR 100.3[[D][2]).
We have advised that a judge need not investigate alleged misconduct and may discharge his/her disciplinary responsibilities, if any, "based on those facts already known to the judge without further inquiry" (Opinion 22-64; see also Opinion 23-239).
Here, it appears that the inquiring judge has already concluded that he/she has received information indicating a substantial likelihood that the attorney has committed a substantial violation of the Rules of Professional Conduct. If so, the judge is obligated to take "appropriate action" and the sole question presented for us is what action is "appropriate" under the circumstances. This determination is ordinarily left to the judge's discretion in all but the clearest cases, even when the judge is satisfied that the attorney's comments inappropriately touched on the categories set forth in Section 100.3(B)(5) [age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status, against parties, witnesses, counsel or others]. For example, in Opinion 22-49, we advised that "[a]fter a judge admonished an attorney on the record for an inappropriate attempt at humor referencing the client's ethnicity or national origin, the judge has discretion to take further action, but is not required to do so."
By contrast, we did require reporting in Opinion 23-113, where the judge concluded there was a substantial likelihood that an attorney made "multiple offensive remarks" to nonjudicial court personnel and opposing counsel. In that instance, however, some of the extensive remarks described in the inquiry appeared to "qualify as sexual harassment" while others "reflect[ed] ethnic and/or religious bias" (id.).
We note that the racist and sexist remarks described here were apparently made during an out-of-court conversation between an attorney and a client, in which the attorney also provided advice about venue and expressed a view on the need for increased diversity in the judiciary. On the facts presented, we cannot determine for the judge whether the attorney's comments are so egregious that they seriously call into question the attorney's honesty, trustworthiness, or fitness to practice law. That determination must therefore remain in the judge's sole discretion.
If the judge concludes that the alleged misconduct is so egregious that it seriously calls into question the attorney's honesty, trustworthiness, or fitness to practice law, then the judge must report him/her to the attorney grievance committee (see Opinion 22-49). Otherwise, the judge may take some lesser action, exercising his/her discretion to "determine what constitutes "appropriate action' upon the judge's own evaluation of all relevant and known circumstances" (id. [admonishment on the record]; Opinion 15-54 [noting examples such as "addressing the prosecutors' conduct in a decision" or ""counseling, reprimanding, admonishing, sanctioning, [or] reporting the attorneys to their superiors"]).
As a reminder, if the judge chooses to report the attorney, he/she must thereafter disqualify in all cases involving that attorney during the pendency of the disciplinary complaint and for two years after its resolution (see e.g. Opinions 20-151; 20-67). This disqualification is not subject to remittal unless the attorney grievance committee imposes public discipline, or the reported attorney waives confidentiality (id.).
