In re Court's Discharge of its Responsibilities Pursuant to 22 NYCRR #167; 100.3 (D) (2) (3)

• Decision Date: 23 August 2023
• Citation: 2023 NY Slip Op 23258
• Parties: In the Matter of the Court's Discharge of Its Responsibilities Pursuant to 22 NYCRR § 100.3 (D) (2), (3).
• Court: New York Supreme Court

2023 NY Slip Op 23258

In the Matter of the Court's Discharge of Its Responsibilities Pursuant to 22 NYCRR § 100.3 (D) (2), (3).

Supreme Court, Kings County

August 23, 2023

Unpublished Opinion

AARON D. MASLOW, Justice of the Supreme Court.

Introduction

This decision and order is written in fulfillment of this Court's obligations pursuant to the Rules of Judicial Conduct pertaining to disciplinary responsibilities of judges, as set forth in the Rules of the Chief Administrator of the Courts, located at 22 NYCRR 100.3 (D).

This Court regrets that it had to expend time on the within matter, but nonetheless was obligated to do so in light of what transpired in the case at bar on one of its Motion Calendar Days. To provide background to the incident, this Court herewith explains that its practice with respect to motions since it began serving as a Justice of the Supreme Court in Kings County effective January 1 of this year has been to prepare in advance. This Court's two law clerks have assisted a great deal in this endeavor by preparing bench memoranda. In the days preceding a Motion Calendar Day this Court reviews the memoranda and the papers submitted by the proponents and opponents of the motions. Research as necessary into case law is performed. A lot of time is expended in becoming familiar with the motions in advance. The foregoing has taken place concomitantly with this Court's responsibilities to prepare for trials and preside over them.

Earlier this year, this Court expanded upon this practice by occasionally directing attorneys appearing before it on selected motions to conference them with a law clerk so as to flesh out the arguments of the respective parties. After these conferences were held in the Court's robing room the law clerk would apprise this Court of the parties' arguments which they would be making in court. The attorneys were then given the opportunity to address this Court de novo, and the motions were determined either from the bench or after having reserved decision.

When this Court was advised by supervisory personnel within the court system that it was traditional for judges to retain law school students as judicial interns for the summer, this Court undertook to do so, with two goals in mind. One goal was to have additional staff who could assist in preparing bench memoranda. This would somewhat relieve the burden faced in preparing the motions. This Court's other purpose in mind was to mentor future attorneys and provide them with the opportunity to experience litigation under the supervision of itself and the law clerks from the behind-the-scenes perspective of a judge's chambers. Thus, this Court retained several law students (and a college student applying for law school) as interns for this summer. In retaining the interns, this Court abided by principles of diversity by encouraging applications from population sectors who historically were underrepresented in the legal profession. Advocating for diversity has been an undertaking of this Court even in the decades before assuming the bench.

Having been a practicing attorney for over 40 years prior to commencing service as a judge, this Court has personally observed discrimination, bias, and mistreatment of various constituent groups of attorneys in the legal profession. It stepped in personally as it saw necessary. This included advocating for women attorneys who were instructed to return to work prematurely after having given birth, gay and lesbian attorneys about whom pejorative remarks were made, Jewish and Muslim attorneys who were not being provided with kosher and halal food respectively at organized events, Jewish attorneys who could not be present for events scheduled for religious holidays, and an attorney of the Baha'i faith who needed to leave early due to sunrise-to-sunset fasting in the spring. As an Accredited Provider of Continuing Legal Education, this Court presented no-fee Continuing Legal Education courses about accommodations for and tolerance of religious and cultural minorities in arbitration and about discrimination against and harassment of women in the legal profession.

With the foregoing background information, this Court now relates what transpired in the instant case.

Incident Under Review

With the benefit of having additional staff this summer in the person of the interns who were retained, this Court determined that it would be useful for them to conduct pre-motion argument conferences together with a law clerk for the purpose of reviewing the issues being raised. During the conferences, the intern assigned to the motion would simultaneously prepare a memo encompassing the parties' respective positions. That way, this Court could review the memo just before the attorneys presented oral argument. These conferences were not designed to replace oral argument but to supplement them. It also was an opportunity for the law clerks and interns to familiarize themselves with the arguments in case they were assigned to draft post-argument decisions for this Court to edit, finalize, and submit.

The within action being one for personal injuries allegedly resulting from an accident, a motion for summary judgment was made. This Court determined that an intern and a law clerk would conduct a pre-oral argument conference in the robing room with the attorneys appearing for the parties, with other interns being present to observe. The conference was held this Court was provided with the respective intern's pre-argument memo, and oral argument was had on the summary judgment motion.

At the conclusion of the motion calendar, this Court was informed by the law clerk who participated in the conference that one of the attorneys ("the Attorney" hereinafter) had engaged in inappropriate behavior. I instructed the law clerk to prepare a memo immediately while the matter was still fresh in his memory and that of the interns who were present.

Among the comments attributed to the Attorney in the robing room were as follows:

• He stated that "if I were younger I would flirt" with the intern assigned to the case.

• He made a comment about her physical appearance.

• He claimed that he could covet her because she was unmarried. ^[1]

• The Attorney referred to opposing counsel as "darling," and then corrected himself by saying that he was not allowed to use sexist terms to refer to women.

• After opposing counsel identified herself as being Ukrainian, the Attorney used certain terms to refer to people of Polish and Ukrainian descent.

• He commented that he was a" juris doctor," not a Jewish doctor.

• The Attorney attempted to engage in unsolicited conversation with another intern as to his Judaic belief system.

• He questioned the law clerk as to whether the latter's first name should be pronounced in a more ethnic manner (and, after being told no in the robing room, he used the more ethnic variation upon his return to the courtroom).

Two days after the above incident, this Court sent an email to the attorneys who appeared on the motion to attend a hearing concerning the matter. Several days later the hearing was conducted. The heretofore described Attorney appeared as did opposing counsel, who was accompanied by a partner from her firm.

During the hearing, this Court related the remarks attributed to the Attorney. He did not deny making the remarks. His adversary confirmed, "Your Honor, based on my recollection, the remarks that were addressed to me, the record of the remarks is accurate. The results are true that I am not personally complaining against [name redacted]...." (Transcript at 16).

This Court notes that at the hearing, the Attorney apologized profusely many times and attributed his lapse in judgment to several factors. The Attorney did not contest having said the following:

• "I am far from disputing it (id. at 11)."

• "I thought I was adding some levity to the room" (id. at 13).

• "The thing that is what I do. People who know me know that I like to make people laugh and smile, and I do so without any kind of malice" (id. at 11).

• The remarks were made in a conference and not in the courtroom, and "I tried to bring some humor to a boring proceeding, I apologize" (id.).

• The remarks were made in "fun and laughing," and not to be derogatory; the intern was smiling (id.).

• "As far as the biblical story[,] I told the rabbi, and it has to do with coveting" (id. at 9-10); the rabbi considered this funny (id. at 10).

• He did not mean to be disrespectful to anybody (id. at 11).

• He came from a different generation and "things are changing" (id. at 9).

• The law clerk's name has a "ch" sound in it ^[2] and it is hard for people not from the area to pronounce it; there was no intent to insult him (id. at 10).

• The ethnic terms dated back to childhood days and were not intended to be derogatory (id. at 9).

• "This will not happen again. I have learned my lesson. Things change and I have to change with them if I want to continue practicing law" (id. at 14).

• "At the time that the conference went on, I, as a diabetic was very low on my sugar, and I don't know if that caused me to be more lax and to be more - - but the truth of the matter is I should be more alert today. I should be more alert today [about] the humor [and] forget about the comedy clubs. The humor that might not [have] been offensive years ago is offensive.... I should be aware of that and conduct myself accordingly." (Id. at 17.)

Discussion

The Rules of Judicial Conduct enjoin that "A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (22 NYCRR Part 1200) shall take appropriate action" (Rules Governing Jud Conduct [22 NYCRR] § 100.3 [...