Opinion 07-141

September 6, 2007

Digest:         A judge may attend a party for the spouse of a public defender who regularly appears before the judge, and a religious function for the daughter of a law guardian who regularly appears before the judge, unless either counsel is presently on trial before the judge. If the judge chooses to attend either event he/she must thereafter consider whether either disclosure or disqualification is appropriate when the attorney subsequently appears before the judge.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); 100.3(F); Opinions 06-149; 06-44; Joint Opinion 05-89 and 05-90; Opinions 95-99 (Vol. XIII); 92-22 (Vol. IX); 89-23 (Vol. III); Matter of Huttner, Comm. on Jud. Conduct (July 5, 2005).

Opinion:

         A Family Court judge asks if he/she may attend two social gatherings involving an attorney who regularly appears in the judge’s court. The first gathering is a party for a person who once appeared in the judge’s court seven or eight years earlier, and whose spouse is a public defender regularly appearing in the judge’s court. The second gathering is a religious function for the daughter of a law guardian regularly appearing in the judge’s court.

         A judge generally may socialize with attorneys who appear in the judge’s court, subject to the Rules Governing Judicial Conduct. For example, a judge may attend the wedding of an attorney who regularly appears in the judge’s court and present a wedding gift. Opinion 06-44. A judge also may attend a birthday party for an attorney who frequently represents clients before the judge. Opinion 89-23 (Vol. III). As the Committee sees no distinguishing factor between these events and those the inquirer proposes to attend, we conclude that the judge may attend them, assuming that neither attorney will be involved in a trial before the judge at the time the events occur, and assuming the judge otherwise complies with the Rules Governing Judicial Conduct. 22 NYCRR 100.2(A); Opinions 06-44; 92-22 (Vol. IX). In particular, the judge must avoid creating even the appearance of impropriety, or discussing any pending matters during these social events. Opinion 95-99 (Vol. XIII).

         While the inquiring judge may attend the events described, he/she must thereafter consider whether disqualification is warranted when one of the attorneys involved subsequently appears before him/her. Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). While mere attendance at such events does not, in and of itself, warrant either disclosure or recusal, one or the other may be required if the judge and the attorney maintain a “close social relationship.” Matter of Huttner, Comm. On Jud. Conduct (July 5, 2005)(“At 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.” citing 22 NYCRR 100.3(F)); see also Opinion 06-149; Joint Opinion 05-89 and 05-90. Under these circumstances, however, the judge’s disqualification is subject to remittal. 22 NYCRR 100.3(F).

         Here, the inquirer indicates that he/she has not recently socialized with these attorneys, and nothing suggests a “close social relationship” that would warrant disqualification. Cf. Opinion 06-149. Nonetheless, we deem it advisable that, for a reasonable period of time after the judge attends the function, he/she should disclose his/her attendance whenever one of the attorneys subsequently appears in the judge’s court.