Opinion 10-160

October 28, 2010

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A part-time town justice who recently provided funeral services to an attorney should fully disclose that he/she did so whenever the attorney appears in the judge’s court for two years after the funeral bill is paid. If all parties are represented by counsel, and after affording the parties and their attorneys the opportunity to be heard, the judge must exercise his/her discretion in deciding whether to disqualify him/herself. If any party in the matter is self-represented, the judge must disqualify him/herself during this two-year period.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(D)(1)(a)-(c); 100.6(B)(4); Opinions 08-166; 08-204.

Opinion:

         A part-time town justice operates and owns a funeral home and recently provided funeral services to an attorney who regularly appears in the town court. The justice asks whether he/she must disqualify him/herself when the attorney appears in the town court and, if so, for how long.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must disqualify him/herself in proceedings in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), unless such disqualification is remitted (see 22 NYCRR 100.3[F]). While all judges are prohibited from engaging in financial and business dealings that may reasonably be perceived to exploit their judicial positions; that may involve them with any business, organization or activity that ordinarily will come before them; or that may involve them in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the courts on which they serve (see 22 NYCRR 100.4[D][1][a]-[c]), part-time judges may accept private or public employment which is not incompatible with judicial office and does not conflict or interfere with the proper performance of their judicial duties (see 22 NYCRR 100.6[B][4]).

         It is the Committee’s view that, in most cases, a one-time, arms-length business transaction between a judge and an attorney who appears in the judge’s court would not cause the judge’s impartiality to reasonably be questioned (see 22 NYCRR 100.3[E][1]). However, unlike other business transactions, the nature of the services the judge provided to the attorney, i.e., the funeral of a family member or friend, is highly personal and occurred at a time when presumably the recipient was very emotional. Therefore, if the inquiring judge believes that he/she can be impartial and is willing to preside, he/she should, for a period of two years after the attorney has completely paid for the judge’s services, fully disclose on the record his/her prior transaction with the attorney and afford the parties and their attorneys an opportunity to be heard. The judge should thereafter exercise his/her discretion in determining whether to disqualify him/herself (see Opinion 08-166).

         However, if during this two-year period, the attorney appears before the judge in a matter where any party is not represented by counsel, the judge must disqualify him/herself (see Opinion 08-204 [remittal is unavailable where any party is unrepresented]).

         Of course, if the judge doubts his/her ability to be impartial in matters in which the attorney appears, the judge must disqualify him/herself (see 22 NYCRR 100.3[E][1]).