Opinion 10-37

March 10 -11, 2010

Digest:         A town justice who owns shares in a corporation that leases office space to the same town in which the judge presides must disqualify him/herself when the town appears in the judge’s court or, if the need for disqualification is frequent, must divest him/herself of the ownership interest in the corporation.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(D)(1)(a); 100.4(D)(2); 100.4(D)(4); Opinion 97-55 (XV); 95-01 (XIII).

Opinion:

         A town justice who owns fifty percent of the shares of a corporation that owns an office building asks about the ethical implications should the corporation rent office space to the same town where the judge presides.

         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 may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22NYCRR 100.4[A][1]-[3]). Therefore, a judge may hold and manage his/her own investments and those of his/her family members, including real estate (see 22 NYCRR 100.4[D][2]). However, a judge must not engage in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][1][a]). In addition, a judge must manage his/her investments to minimize the need for disqualification, but must divest him/herself of investments that might require frequent disqualification (see 22 NYCRR 100.4[D][4]).

         The Committee previously has advised that a judge who is a part owner of an office building which leases office space to a drug and alcohol treatment center that provides services to defendants appearing in the judge’s court must disqualify him/herself from all cases involving the treatment center (see Opinion 97-55 [Vol. XV]). The Committee further advised that the judge may have to divest him/herself of his/her interest in the building if the judge must frequently disqualify him/herself (see id.; 22 NYCRR 100.4[D][4]). Similarly, in Opinion 95-01 (Vol. XIII), the Committee advised that a judge who owns investment property with a police officer who appears in the judge’s court must disqualify him/herself in any case involving the police officer or divest him/herself of his/her interest in the investment.

         The judge in the present inquiry also must disqualify him/herself if the corporation in which he/she has an ownership interest leases office space to the same town where the judge presides (see 22 NYCRR 100.3[E][1]; Opinions 97-55 [Vol. XV]; 95-01[Vol. XIII]) or, if the need for disqualification is frequent, must divest him/herself of the ownership interest in the corporation (see 22 NYCRR 100.4[D][4]).