ETHICS OPINION 246
NUMBER 246 1926
Question. In the opinion of the Committee is it proper that the secretary or clerk of a judge, who appoints a referee, shall dictate or suggest to the referee the selection of a stenographer to report the matter in order that the secretary or clerk may share in the compensation of the stenographer, whether or not the stenographer’s fee is taxed as costs in the litigation?
If it is deemed improper, what course should be adopted to prevent its recurrence.
Answer. In Bacon’s essay “Of Judicature” (quoted among the “Ancient Precedents” prefixed to the Canons of Judicial Ethics adopted by the American Bar Association) appears the following: “The place of justice is a hallowed place, and therefore not only the Bench, but the foot pace and precincts and purprise thereof ought to be preserved without scandal and corruption.”
This Committee regards this quotation as setting forth a wholesome principle which ought to be observed by all persons connected in any way with the judicial establishment or the administration of justice.
The disregard of the principle makes the way easier for scandal and corruption.
The Canon of Judicial Ethics upon Court Organization (Canon 8) expresses the view that the judge should not tolerate abuses by clerks and other assistants who are sometimes prone to presume too much upon his good natured acquiescence by reason of friendly association with him.
The Canon upon Appointees of the Judiciary (Canon 12) mentioning, among others, referees and other persons appointed by a judge to aid in the administration of justice, asserts that they should have the strictest probity and impartiality, and should be selected with a view solely to their character and fitness. It also asserts that a judge should not permit his appointments to be controlled by others than himself, and he should avoid undue favoritism in his appointments. A referee is an appointee assisting in the administration of justice.
It is abhorrent to the due administration of justice and the esteem in which it should be held, that the selfish interests or the favoritism of judges’ clerks should be permitted in any manner to influence or attempt to influence the referee with respect to the selection of a reporter regardless of whether or not such clerks are to benefit therefrom.
In the opinion of the Committee, the practice as stated in the question is vicious and intolerable and should be stopped.
To that end copies of the question and of the Committee’s answer should be sent to the judges of the courts of civil jurisdiction in New York County.
The inquirer is also advised that the following function is conferred upon the Judiciary Committee of this Association by its by-laws:
Section 2. The Committee shall also have power to consider complaints made against the clerks and other ministerial officers and attendants connected with courts, and, if it finds such complaints well founded, to bring the matter before the Directors for action.