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