Joint Opinion 05-89 and 05-90

September 8, 2005

Digest:         A judge who has a close social relationship with an attorney who is appearing before him or her is subject to disqualification, and, therefore, in order to preside the judge must disclose the nature and extent of the relationship to the parties and their attorneys to enable them to consider whether the judge should recuse.

Rules:          Matter of Robert, 89 N.Y.2D 745 [1997]; 22 NYCRR 100.2; 100.3(E)(1); 100.3(F). Opinions 92-22 (Vol. IX); 95-99 (Vol XIII); Matter of Huttner (Comm on Jud Conduct, Slip Op [July 5, 2005])

Opinion:

         A judge indicates that he/she has an annual holiday "get together" at his/her home for about 70 people, including some who are attorneys and their spouses. The judge inquires whether Matter of Huttner (Comm on Jud Conduct, Slip Op [July 5, 2005]) requires disclosure and thus an offer of recusal if one of those attorneys appears before the judge. Another judge asks a similar question.

         It is the opinion of the Committee that the attendance of an attorney at a judge's holiday celebration does not, standing by itself, require disclosure by the judge should that attorney appear before him or her. For the issue is not simply attendance at a particular event but whether, as held in Huttner, there is a “close social relationship” between the judge and the attorney.

         Section 100.3 (E)(1) of the Rules Governing Judicial Conduct states that a judge's disqualification is required in any matter where the judge's impartiality might reasonably be questioned. In Matter of Huttner, the Commission on Judicial Conduct found that section 100.3 (E)(1) had been violated because the judge presided over a case notwithstanding that he had a "close social relationship" with an attorney who was representing a party before him and to whom he had awarded 11 fiduciary appointments over a four year period.

         This Committee has previously stated - - and Matter of Huttner does not hold to the contrary - - that judges are not prohibited from engaging in ordinary social activity with attorneys who practice before them as long as there is no discussion relating to any of the attorneys' matters then pending before the judge, and provided further that there is no appearance of impropriety. 22 NYCRR 100.2; see e.g. Opinions 95-99 (Vol XIII); 92-22 (Vol IX). Clearly, during the course of a trial, a judge should avoid private social activity with the attorneys who are engaged in litigation before the judge. Opinion 92-22 (Vol IX).

         Further, if the personal relationship between a judge and attorney can be characterized as a close social relationship and thus one in which the judge's impartiality might reasonably be questioned, the judge should, at the very least, disclose the relationship. See 22 NYCRR 100.3 (F); Matter of Robert, 89 NY2d 745 (1997). As stated in Huttner, “[a]t the very least, respondent should have disclosed the relationship so that the parties and their attorneys, could have had an opportunity to consider whether to seek his disqualification (See Section 100.3[F] of the Rules.)”

         Put another way, the existence of a close social relationship creates a situation in which the judge’s impartiality might reasonably be questioned and that relationship renders the judge subject to disqualification. The disqualification is subject to remittal in accordance with the requirements of section 100.3(F) of the Rules, cited by the Commission in Huttner. Thus, in order to preside the judge must disclose the nature and extent of the relationship to the parties and their attorneys so that a determination can be made, whether under such circumstances there is to be an informed consent to the judge presiding or whether recusal is called for. 22 NYCRR 100.3(F).