Opinion 04-46

April 22, 2004

Digest:         A judge, sitting in the matrimonial part of a court, whose sister-in-law is a real estate agent who had sent a letter to the other matrimonial judges promoting her business in connection with divorce cases, is not required to write to the judges disavowing any connection with the letter, but should caution the sister-in-law to avoid any possible reference to the judge in offering the firm’s services to the local matrimonial bar.

Rules:          22 NYCRR 100.2, 100.2(C).

Opinion:

         A recently-elected judge states that the judge’s spouse, a matrimonial lawyer, is a partner in a law firm. One of the partners is married to the spouse’s sister, a real estate agent. Several months before the events in question, and apparently before the judge assumed judicial office, the law firm was involved in a divorce action in which the parties could not agree on a real estate broker to sell the marital residence. The judge’s spouse brought in the sister, who handled the matter. After the judge assumed office, and unknown to him/her, the sister-in-law sent a letter to the judges in the matrimonial section of the court, promoting real estate brokerage services and free legal closing services in divorce cases. The letter did not mention the judge or the judge’s spouse. The sister-in-law’s last name is the same as her husband’s, and his name is in the name of the firm. When the supervising judge of the court received the letter he recognized the name as the name of a partner in the law firm and asked the inquiring judge who the author was. Upon learning of the connection to the judge’s spouse, the supervising judge expressed the opinion that sending the letter “was a bad thing to do,” as it could create the impression that the judge was somehow endorsing the offered service.

         The sister-in-law is thinking of sending the letter to attorneys in the matrimonial section of the local bar association.

         The judge seeks the Committee’s opinion as to what, if anything, might be required under these circumstances.

         Section 100.2(C) of the Rules Governing Judicial Conduct states that “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . .” Further, a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities. 22 NYCRR 100.2. The question here is whether there is a risk of the appearance of impropriety if the judge takes no action regarding the letter.

         On the facts presented, it appears that the court and inquiring judge had no role in the drafting or distribution of the letter, and neither the judge nor the judge’s spouse is mentioned in it. It is reasonable to infer, however, that among matrimonial judges and lawyers a connection between the author of the letter and the judge’s spouse might be assumed, as the supervising judge’s reaction demonstrates. Nevertheless, we do not believe that the judge is required, as a matter of judicial ethics, to write a disavowal to the judges who received the letter. The fact that the judge’s spouse’s sister is married to and has the same name as the judge’s spouse’s law partner is not sufficient to require such action. No language in the letter pointed to any connection to the judge, and we believe it unnecessary to require the judge to formally announce the relationship to the other judges and simultaneously renounce any involvement in the matter. However, we do believe it is advisable for the judge to caution the sister-in-law in the strongest terms possible to avoid any possible reference to the judge in any future offering of services to the matrimonial bar.