NY Top Judge's Intervention In Critic's Case Alarms Ethicists

New York Chief Judge Janet DiFiore likely violated state judicial ethics rules by intervening in the disciplinary case of a longtime critic who had threatened to smear her, experts told Law360, even as her Monday resignation casts uncertainty over the probe.

Chief Judge Janet DiFiore (AP Photo/Hans Pennink, File)

On Monday, shortly after Judge DiFiore announced she would step down on Aug. 31, Law360 revealed she has been under investigation by the New York State Commission on Judicial Conduct for sending a letter to a judicial hearing officer presiding over the disciplinary hearing of Dennis Quirk. The letter urged punishment for Quirk, president of the New York State Court Officers Association, who had sent an email threatening to circulate a salacious news story about Judge DiFiore.

The commission served Judge DiFiore with a formal written complaint and charges of ethical misconduct last month, the Wall Street Journal reported Tuesday. The most severe penalty possible would be removal from office and a ban on holding judicial office in the future.

A spokesperson for the chief judge and her attorney said her decision to resign had nothing to do with the investigation.

Ethics experts told Law360 that Judge DiFiore's unsolicited letter likely violated ethics rules, which forbid judges to "initiate ... ex parte communications ... concerning a pending or impending proceeding" or "to lend the prestige of judicial office to advance the private interests of the judge."

Some experts believe the letter may also indicate bias or prejudice and undermine public confidence in the integrity and impartiality of the judiciary, further violations of New York's code of judicial conduct.

"The letter suggests that the judge was trying to put her finger on the scales in the disciplinary proceeding," said Ronald Minkoff of Frankfurt Kurnit Klein & Selz PC, a legal ethics expert who analyzed New York's judicial conduct code for the state bar association. "No matter how provoked she was — and she was indeed provoked — she shouldn't have let Mr. Quirk's conduct get under her skin."

Quirk was brought up on disciplinary charges for sending an email to Judge DiFiore in the wake of a New York Post article that reported she had ordered an "independent review of the New York state court system's response to issues of institutional racism" after receiving a complaint about the union leader's alleged conduct toward Black court officers.

Quirk then emailed Judge DiFiore, suggesting he'd respond to her spreading "false rumors," according to state court records filed to quash a subpoena for DiFiore to testify in Quirk's disciplinary hearing.

"Lets [sic] see [how] you like the online articles about your relationship with a police officer with ties to organized crime while you were married posted all over every court building in NYS," Quirk said, according to the court documents.

Richard Emery, who served on the commission for 13 years, said Judge DiFiore's use of judicial stationery to write to the hearing officer would be "a big violation, which is something the commission has seen many times, regrettably."

"That is a classic, and hardly unprecedented, situation of judges using their position for personal gain or influence over a pending judicial proceeding," he said.

"But in this case, on a human level, it is understandable," Emery said. "Just not permissible."

As a member of the commission, Emery wrote opinions asserting that "the use of judicial office for personal gain is the most serious of any category of misconduct that comes before the commission," including matters where a judge sought to escape consequences or tilt the scales in their favor by touting their title.

Another issue is that while Judge DiFiore styled her letter as an "impact statement" and wrote, "I appreciate the opportunity to address you directly," the judicial hearing officer and Quirk contend her letter was unsolicited and voluntary. Experts said this indicates the chief judge sought to improperly intervene in Quirk's case.

A 1997 opinion by the state's Advisory Committee on Judicial Ethics states that "this committee has repeatedly advised that a judge may not ... voluntarily submit a letter or affidavit recommending a particular course of action" in a criminal or professional misconduct proceeding.

A 2005 opinion states that "this committee has held that voluntarily writing such a letter in a professional disciplinary matter would be tantamount to testifying as a character witness." And New York's judicial conduct code states: "A judge shall not testify voluntarily as a character witness."

The Commission on Judicial Conduct warns on its website that "in no instance may the judge initiate communication with [a court, parole board, or disciplinary committee] in order to convey information about the accused. To do so would both be and appear to be improper, as it would use the prestige of judicial office to vouch for someone."

In Judge DiFiore's case, instead of vouching for Quirk, she condemned his "contemptuous misconduct" and urged "significant sanction."

Bruce Green, a legal ethics professor at Fordham, said that while he believes the letter shows poor judgment by Judge DiFiore, it does not necessarily show she violated a rule. Nevertheless, Green said he could see the commission seeking to punish Judge DiFiore for writing a letter that would have outsized influence on the proceedings given her position as chief judge of the court system.

"The commission may feel that there is a bad appearance here that should have been avoided, and it will have to decide whether that amounts to sanctionable judicial misconduct or just bad judgment," Green said.

The rules governing judicial conduct forbid not only bias or abuse of authority, but also creating an appearance of impropriety.

But while the 11-member commission has reportedly voted to bring Judge DiFiore up on formal charges — only after formal fact-finding proceedings akin to a trial — the commission would still be faced with the question of what punishment is appropriate for her alleged misconduct.

That could be challenging.

"This is a complex case because of the horrific alleged provocation," Emery said. "It's not a complex case with respect to her using her judicial position to influence an ongoing proceeding. But the mitigation is complex, and problematic and has to be evaluated thoughtfully," he added, noting that Quirk's provocation would play a role in the decision.

The commission is constrained in how long it can continue to pursue its case against her. Its jurisdiction generally ends with the resignation of a judge, except in cases where the commission seeks its most drastic remedy: removal from office. In that scenario, the commission has 120 days to pursue its case and arrive at a final determination, which would effectively bar Judge DiFiore from holding any judicial office in the future.

In that situation, the removal determination would then be sent to the chief judge to be served on herself. She could then appeal the decision to her colleagues on the Court of Appeals.

But if the commission opts for any discipline short of removal, Judge DiFiore's resignation on Aug. 31 will shutter the investigation.

Another possible result, one expert noted and the rules allow, is that Judge DiFiore negotiates a resignation stipulation with the commission: an agreed statement that discloses some of the alleged misconduct and promises the she will not return to the bench. Such resignation deals have risen steadily in recent years.

The commission first introduced resignation stipulations as an offramp from lengthy judicial ethics proceedings, which average 18 months from start to finish. The deals allow the watchdog to effectively achieve its most serious sanction — removal from office — and allow judges to avoid legal fees from fighting the charges while swiftly exiting without risking full disclosure of the allegations.

Even after Judge DiFiore leaves the judiciary, Minkoff said it's theoretically possible she could face discipline by an attorney grievance committee, which is empowered to mete out penalties ranging from a suspended law license to disbarment.

The Rules of Professional Conduct forbid conduct "prejudicial to the administration of justice."

An attorney for Judge DiFiore, who has not said what she'll do after stepping down, reiterated that her decision to resign was unrelated to the investigation.

"Complaints such as Mr. Quirk's are filed all the time. That is part of being a public official in this day and age," ethics attorney Deborah Scalise said in a statement on Tuesday. "Chief Judge DiFiore's announcement yesterday, one that she has been planning for months, is completely unrelated to Mr. Quirk's Complaint or any other external factors."

--Editing by Adam LoBelia.

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