Unethical for Lawyers to Tell Clients Their Judges May Be Biased Based on Race, Sex, Etc.?
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])
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