Opinion 06-28

March 9, 2006

Digest:         A judge may appoint, as an expert, an accountant with whom the judge has a minimal social relationship and a remote financial connection, but the judge should not, unsolicited, recommend this expert for appointment by other judges

Rules:          22 NYCRR 100.0(D); 100.2(C); 100.3(E); 100.3(E)(1)(c); Opinions 06-74; 04-99; 04-46; 03-13; 02-26; 99-68 (Vol. XVIII).

Opinion:

         A judge inquires about the propriety of appointing and recommending for appointment by other, similarly-situated judges, an accountant with whom the judge has a minimal social relationship and a remote financial connection. The inquiring judge represents that the social relationship with the accountant consists of attending “mutual social functions about twice a year,” but notes that they do not socialize “on an individual basis.” The financial connection arises from the accountant’s ownership of 0.5% of a corporation, which is controlled by a holding corporation in which the judge is a passive,1% shareholder.

         The Rules Governing Judicial Conduct require that a judge disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). This specifically includes situations where the judge has a more than de minimis financial interest in, or a close social relationship with, an interested party. 22 NYCRR 100.0(D); 100.3(E)(1)(c).

         Under the circumstances presented, where a judge and a qualified expert meet at social functions only twice a year, the social relationship is not sufficient to require the judge’s disclosure or his/her disqualification from considering that expert for appointment. Opinions 06-74; 03-13. Accordingly, the judge need not disclose this remote social relationship nor disqualify him/herself from appointing or presiding over proceedings involving this expert, unless the judge personally entertains doubts about his/her impartiality. Opinions 06-74; 03-13.

         Further, the financial relationship between the parties is too remote to cross the “de minimis” threshold. 22 NYCRR 100.0(D). Accordingly, the judge also need not disclose this connection nor disqualify him/herself from appointing or presiding over proceedings involving the expert, unless, on this basis, the judge personally entertains doubts about his/her impartiality. Opinion 04-99.

         Nevertheless, the judge should not, unsolicited, recommend this expert for appointments by other judges. Under the circumstances, such unsolicited recommendations might be perceived as inappropriately utilizing the prestige of judicial office to advance the accountant’s private interests. 22 NYCRR 100.2(C); Opinions 04-46; 02-26. The judge may, however, share his/her knowledge of the accountant’s qualifications should other judges ask. Opinion 05-29.