Opinion 07-126

January 25, 2008

Digest:         A judge and the judge’s staff may join a bar association’s elder law committee, and the judge may appoint otherwise eligible attorneys who also are members of the committee to fiduciary and counsel positions in the judge’s court in accordance with the Rules Governing Judicial Conduct and the Chief Judge’s Rules Governing Appointments by the Court.

Rules:          22 NYCRR 36.0;100.3(E)(1); 100.3(C)(3); 100.4(A)(1),(3); 100.4(C)(3); Opinions: 06-121; 04-78; 91-18 (Vol. VII); 88-100 (Vol. II).

Opinion:       

         A judge asks if it is ethically permissible for the judge and the judge’s staff to join a county bar association’s elder law committee. The judge regularly presides in Mental Hygiene Law Article 81 proceedings, appoints attorneys to serve as counsel and fiduciaries and awards fees in such proceedings. Many of the attorneys eligible for these appointments are members of the same bar association elder law committee.

         Pursuant to the Rules Governing Judicial Conduct, a judge may be a member of an organization devoted to the improvement of the law, the legal system or the administration of justice. 22 NYCRR 100.4(C)(3); Opinion 06-121. As participation in bar associations and other legal organizations is to be encouraged (Opinion 88-100 [Vol. II]), the inquiring judge and his/her staff may join a county bar association’s elder law committee.

         Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In Opinion 04-78, this Committee advised that a Family Court judge, who serves as chair of an advisory committee dealing with child protective issues, should disclose his/her role with the committee when another committee member appears before the judge as an expert witness, and exercise recusal upon a party’s request. In the Committee’s view, disclosure and recusal are appropriate in those circumstances as the judge must assess an expert witness’ credibility and knowledge of a subject that is not necessarily familiar to the judge. The judge’s ability to remain impartial in doing so, when the expert serves on a committee with the judge and frequently interacts with the judge in that setting, might reasonably be questioned.

         The Committee concludes that this is distinguishable from the situation presented here, where the inquirer is asked to evaluate legal arguments and evidence from attorneys he/she knows from bar association committee work, rather than evaluating the lawyer’s testimonial crediblity. The judge in the present inquiry, therefore, need not exercise recusal when an attorney who also is a member of the bar association elder law committee appears in the judge’s court.

         With respect to appointing attorneys who also are members of the bar association elder law committee to serve as fiduciaries or as counsel, and also approving their fees, the inquiring judge must adhere to the Rules Governing Judicial Conduct and the Rules of the Chief Judge Governing Appointments by the Court. In accordance with such Rules, a judge must avoid nepotism and favoritism, and make appointments impartially and on the basis of merit. 22 NYCRR 36.0; 100.3(C)(3). By serving on the bar association’s elder law committee, the inquiring judge is likely to increase his/her knowledge of the character, personality, judgment and competence of attorneys otherwise eligible for appointment in the judge’s court, thereby enhancing his/her ability to make the most informed appointments possible. The judge in the present inquiry, therefore, may appoint an attorney who also is a member of the committee to serve as counsel or as a fiduciary, so long as the appointment and resulting fee otherwise comply with the Rules Governing Judicial Conduct and the Chief Judge’s Rules Governing Appointments by the Court.

         Finally, to the extent members of the judge’s staff desire to serve on the bar association’s elder law committee, the Committee discerns no reason, pursuant to the Rules, why they may not do so. The Committee recognizes, however, that there may be other considerations presented by the Rules Governing Conduct Of Nonjudicial Employees (22 NYCRR Part 50). Accordingly, the judge’s staff should contact the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50 of the Chief Judge’s Rules, for further guidance. (Contact: ETHICS HELPLINE: 1-888-28-ETHIC.)