Opinion 07-27

September 6, 2007

Please Note: This opinion has been modified by Opinion 20-126 “to make clear that the judge is disqualified, subject to remittal.”  See Opinion 20-126 fn 1.

Digest:        A judge (1) may not appoint an attorney, whose firm rents office space in a building owned by the judge’s parents’ corporation, to serve as a referee in a mortgage foreclosure proceeding; and (2) must disclose and offer to recuse when an attorney appearing before the judge rents office space in a building owned by the judge’s parents’ corporation.

Rules:         22 NYCRR Part 36; 22 NYCRR 100.2; 100.2(B); 100.3(C); 100.3(E)(1); 100.3(F); Opinion 04-51.

Opinion:

         A full-time judge asks if he/she may appoint a specific attorney to serve as a referee in a mortgage foreclosure proceeding. The attorney’s name is included on the list of individuals eligible for such appointment pursuant to 22 NYCRR Part 36, but is a named partner in a law firm that rents office space in a building owned by the judge’s parents’ corporation.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities. 22 NYCRR 100.2. In particular, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment, and a judge must make all judicial appointments impartially and on the basis of merit. 22 NYCRR 100.2(B); 100.3(C). Here, where the judge’s parents have an on-going business relationship with an attorney’s firm, appointing that attorney to serve as referee in a mortgage foreclosure proceeding would, at the least, create an appearance of impropriety. See Opinion 04-51. This is true although the attorney is otherwise eligible for such appointment pursuant to 22 NYCRR Part 36.

         Although the judge must not appoint the attorney to serve as a referee in a mortgage foreclosure action, the judge is not necessarily disqualified from presiding when the attorney appears in the judge’s court. A judge is disqualified in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In Opinion 04-51, however, this Committee advised that where an attorney appearing before the judge rented office space in a building owned by the judge’s spouse, the judge must disclose the relationship to the parties and offer to recuse. The judge could thereafter preside if all parties consented in writing or on the record. See 22 NYCRR 100.3(F). Similarly, the inquiring judge in this case should disclose the relationship and offer to recuse, subject to remittal, should the attorney in question appear before the judge.