Opinion 08-166

October 23, 2008

Digest:         A judge who formerly had a business/professional relationship and currently has a social relationship with an attorney who is an assistant district attorney should disclose the relationship when the attorney appears in the judge’s court to allow the parties and their attorneys to consider whether to ask the judge to exercise recusal. Upon a request for recusal, the judge must exercise his/her discretion in determining whether his/her impartiality might reasonably be questioned thus warranting recusal. 

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); Opinions 92-22 (Vol. IX); 91-143 (Vol. VIII); Joint Opinion 05-89/05-90; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A newly elected judge and an attorney have had a business/professional relationship for a number of years. For a period of six years, while the attorney was a high school and college student, he/she worked for a law firm at which the inquiring judge was an associate. After the attorney graduated from law school, he/she worked for one year at a firm where the inquiring judge was a partner. Subsequently, although the attorney opened his/her own law practice, he/she shared space with the same law firm for approximately two years. For approximately the last six years, the attorney has served as an assistant district attorney in the same county where the judge now presides as a County Court judge. The attorney is regularly assigned to prosecute serious felony cases, some of which have been assigned to the inquiring judge.

         The judge and the attorney also have maintained a personal friendship. More than five years ago, the judge’s children were members of the attorney’s wedding party, and, on average, the judge, the attorney, and their spouses have dinner once a year. On approximately two occasions, the judge’s children cared for the attorney’s children.

         Although the judge believes that he/she can be impartial, the judge asks whether he/she is disqualified from presiding or must disclose his/her relationship with the attorney when the attorney appears before him/her.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge shall not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), shall not allow others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 91-143 (Vol. VIII), the Committee advised that, for a period of two years after an attorney’s employment as an associate with a judge’s law firm ends, the judge should not preside over matters handled by the attorney in the judge’s court unless the parties and their attorneys remit the disqualification as prescribed in §100.3(F) of the Rules Governing Judicial Conduct. Here, however, the inquiring judge and the attorney who now appears before him/her were last associated in the private practice of law more than five years ago. This fact alone does not warrant disqualification or disclosure.

         The Committee also has stated that there is no ethical impropriety should a judge have breakfast, lunch, or dinner with an attorney who practices in the judge’s court as long as the judge and attorney do not discuss pending matters (see Opinion 92-22 [Vol. IX]). In addition, a judge should avoid any private social activity with an attorney when the attorney is representing a party involved in a trial in the judge’s court (see id.). However, if the personal relationship between a judge and an 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 Joint Opinion 05-89/05-90). Based on the facts in the present inquiry, the judge and the assistant district attorney have a minimal social relationship that by itself does not warrant disqualification or disclosure.

         While neither the judge’s former business/professional relationship nor current social relationship, standing alone, warrants disqualification, when taken together, it is the Committee’s view that the judge should fully disclose this information when the attorney appears and allow the parties and their attorneys to consider asking the judge to exercise recusal. After such disclosure and after the parties and their attorneys have an opportunity to be heard, the judge must exercise his/her discretion in determining whether his/her impartiality might reasonably be questioned, thus mandating recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).