Judicial Censure

The New York State Commission on Judicial Conduct in In the Matter of Richard D. Huttner recently censured a judge who served on the board of his Manhattan co-op. The action concerned litigation activities he undertook which the commission found to be inappropriate.

The respondent in the proceeding, Richard D. Huttner, a justice of the Supreme Court in Brooklyn, was served with a formal written complaint dated July 5, 2001. On December 5, 2001, the administrator of the commission and the respondent entered into an agreed statement of facts, stipulating that the commission make its determination based upon the agreed facts, jointly recommending that respondent be censured and waiving further proceedings. On December 20, 2001, the commission approved the agreed statement and made the following determination.

(1) Huttner, the respondent, served as a family court judge from 1979 to 1985 and served as a Supreme Court justice since 1986.

(2) Huttner had been a resident of the Murray Hill Mews cooperative in Manhattan since July 1996. From May 19, 1997, until September 25, 2001, he served as a member of the co-op's board of directors and as a vice president of the co-op.

(3) Before becoming a member of the co-op board, Huttner was aware of Opinion 96-08 of the Office of Court Administration Advisory Committee on Judicial Ethics, which states that a judge may serve as an officer of a co-op's board, provided such service does not "involve the judge in litigation."

(4) Between June 1999 and January 2001, Huttner signed five affidavits that were filed in court by the co-op's attorney in connection with litigation between the co-op and Rio Restaurant Associates, a commercial tenant of the co-op.

(5) Each of the affidavits referred to contained legal arguments in which Huttner urged the courts presiding over the matter to rule in favor of the co-op and against the restaurant.

(6) Huttner's affidavits are replete with legal conclusions and arguments, including phrases such as "legally unsupported," in "violation of every rule regarding the admissibility of settlement documents," a failure "to meet even a modest threshold of believability," either "by negligent oversight or as an intentional tactic to mislead this Court," "insulting and demeaning to this Court," and "an all-too obvious ploy of diversion by a litigant saddled with a weak set of facts on its side."

(7) The attorneys representing the co-op in the litigation used Huttner's name and referred to his judicial position in correspondence that was sent to the attorneys for the restaurant and to the Supreme Court of New York County. Huttner took no steps to prevent his name and judicial position from being used in this manner. Copies were sent to each member of the co-op's board, including the respondent, who took no action to disassociate himself or his judicial office from the co-op's legal position.

(8) On March 24, 2000, Andrea L. Roschelle, an attorney representing the co-op, sent a letter to Adrian Zuckerman, an attorney representing the restaurant, in which Roschelle stated that the co-op's board had selected Huttner as "its representative before the Court during settlement discussions." The letter also stated that the respondent had "participated in all aspects of the litigation thus far" and had "submitted all of the Cooperative's affidavits supporting its motions for injunctive relief and summary judgment." Roschelle sent copies of this letter to all members of the co-op board, including Huttner.

(9) On April 12, 2000, the respondent attended a settlement conference held before a Supreme Court of New York County court attorney. Huttner attended as the representative of the co-op and participated in the conference on behalf of the cooperative. At the conference, the parties did not agree to a settlement. On a previous occasion, the settlement conference had been postponed because of Huttner's lack of availability.

(10) On April 27, 2000, Roschelle sent a letter to Zuckerman stating that the co-op had rejected a settlement proposal made by the restaurant. Roschelle's letter contained a statement that she would not ask the respondent "to take time from his busy court calendar to negotiate with a party who is not serious." Roschelle sent copies of her letter to then Acting Supreme Court Justice Sherry Klein Heitler, who was presiding over the matter, and to the members of the board of the co-op, including the respondent.

(11) Huttner's active involvement in the matter resulted in the recusal of Acting Justice Heitler because her husband had previously appeared as a litigant before Huttner in Supreme Court of Kings County, and the subsequent transfer of the matter outside New York City.

(12) On or about May 11, 2000, Huttner patronized the restaurant briefly and mentioned to the manager and assistant manager of the restaurant that the litigation should and could be settled if the tenant were represented by a different law firm. During the discussion, Huttner referred to his judicial position and gave the assistant manager of the restaurant a card issued by the Patrolmen's Benevolent Association (PBA) to judges. The card had the word "judge" on a picture of a police badge. The PBA gives such cards in large numbers to judges.

(13) In mitigation, and to avoid further conflict between his judicial role and the role of a board member of a co-op that is presently in litigation, Huttner resigned from the co-op board, effective September 25, 2001, and agreed to play no role in the litigation, either as a witness or representative of the co-op.

Upon the foregoing findings of fact, the commission concluded as a matter of law that the respondent had violated various provisions of the rules governing judicial conduct. The formal written complaint was sustained and respondent's misconduct was established.

The commission said that the ethical rules prohibit a judge from lending the prestige of judicial office to advance private interests and from engaging in extra-judicial activities that are incompatible with judicial office or detract from the dignity of judicial office.

In the commission's views, Huttner's highly visible participation in litigation on behalf of his residential co-op board clearly violated those standards. As the board's representative, the respondent signed affidavits filed in connection with the litigation that were replete with legal arguments and conclusions, and he attended a conference in which he participated in settlement discussions. His role in the discussions was apparently a vital one since the conference had been postponed and rescheduled in order to accommodate him. The commission said that such conduct necessarily implicated the prestige of judicial office to advance private interests and was incompatible with judicial office.

The commission found that Huttner displayed a remarkable insensitivity to his ethical responsibilities and to the ethical problems created by his actions. Without objection by the respondent, the co-op's attorney underscored Huttner's judicial status in connection with the litigation, sending a letter to the defendant's attorney which defended the board's choice of "Judge Richard D. Huttner" as its representative in the settlement discussions and emphasized that the respondent has "participated in all aspects of the litigation thus far"; in another letter (a copy of which was sent to the presiding judge in the case), the attorney stated that "Judge Huttner" will not be asked "to take time from his busy court calendar to negotiate with a party who is not serious."

The commission said that Huttner should have recognized that such heavy-handed communications conveyed the unseemly impression that the co-op was using Huttner's judicial status to advance its position in the litigation. Although copies of these letters were sent to the respondent, he admittedly took no steps to prevent his name from being used in this manner. Huttner's involvement in the matter ultimately resulted in the recusal of the judge handling the case and the subsequent transfer of the case outside of New York City.

The commission noted the respondent himself used the trappings of his judicial office in connection with the litigation when, in a conversation with the manager and assistant manager of the restaurant operated by the defendant, he referred to his judicial position while discussing the litigation and gave the assistant manager a PBA card with the word "judge." Whatever the intent of the respondent's gesture, the commission concluded that it could reasonably be viewed as an unspoken reminder of his judicial status and its attendant perquisites.

The commission concluded that Huttner ignored the sound warnings of the Advisory Committee on Judicial Ethics, which stated unequivocally in numerous opinions that, while a judge may serve as an officer of a residential co-op, any participation in litigation or in rendering legal advice is strictly prohibited in order to avoid the appearance of impropriety. Although fully aware of one pertinent advisory opinion, the respondent inexplicably persisted in conduct, which detracted from the dignity of judicial office.

The commission noted, in mitigation, that respondent had resigned from the co-op board and had agreed to play no role in the litigation in the future.

Comment: This matter is a reminder to judges serving on co-op or condo boards that their judicial responsibility is paramount and that they should recuse themselves in dealing with third parties, particularly where these dealings are adverse and may lead to or involve litigation. This appears to be a rare situation.