Opinion 11-125

October 27, 2011

Please Note: This opinion has been modified by Opinion 22-138, which requires "disclosure for two years after the judge is a social guest at an attorney's wedding." See Opinion 22-138 for more details.

Please Note: This opinion has also 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:         Whether a judge must disclose the relationship or disqualify him/herself when the judge and an attorney appearing before the judge are acquaintances, friends, or otherwise interact socially depends on such factors as the nature of the relationship with the attorney, the inter-relationships among their respective immediate family members, the frequency and context of their contacts, and whether they or their respective family members share confidences.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)(i);100.3(E)(1)(a)-(e); 100.3(F); 100.4(D)(5)(c); Opinions 11-101; 11-45;11-20; 09-234; 08-204; 08-166; 07-141; 07-126; Joint Opinion 07-114/07-120; Opinions 07-26; 06-170; 06-149; 06-44; Joint Opinion 05-89/05-90; Opinions 95-99 (Vol. XIII); 93-87 (Vol. XI); 92-22 (Vol. IX); 91-136 (Vol. VIII); 89-23 (Vol. III); 87-12 (Vol. I); Matter of Huttner (2006 Ann Rep of NY Comm. on Jud. Conduct, at 193); Matter of Robert (1997 Ann Rep of NY Comm. on Jud. Conduct, at 127, sanction accepted 89 NY2d 745 (1997); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge who presides in criminal cases asks about his/her ethical obligations when certain attorneys the judge knows socially appear before him/her. The inquirer states these individuals were previously his/her colleagues at a legal services organization, and they regularly appear on behalf of the same organization as criminal defense attorneys. Although the judge’s professional association with the attorneys ended more than a decade ago, the judge’s friendships with each attorney originated before his/her professional association with them and have continued into the present.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), 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]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law §14).

         Clearly, a judge who cannot be impartial when a particular attorney appears before the judge must disqualify him/herself, and remittal is not available (see 22 NYCRR 100.3[E][1][a][i]; 100.3[F]). However, even when a judge’s disqualification is not mandated by either Judiciary Law §14 or the specific circumstances described in §100.3(E)(1)(a)-(e) of the Rules and the judge believes that he/she can be impartial, if the judge’s impartiality might reasonably be questioned by others, he/she must nonetheless disqualify him/herself, but, in such circumstances, the disqualification is subject to remittal (see 22 NYCRR 100.3[E][1]). Whether a judge’s friendship with an attorney causes a judge’s impartiality reasonably to be questioned depends on the facts of each case.

         The Committee previously has issued a number of opinions addressing a judge's obligations when an attorney, with whom the judge has some kind of social relationship or friendship, appears before the judge. Because the Committee realizes it is difficult and time consuming for a judge to review all the existing opinions to determine how to proceed in his/her individual, fact-specific situation, the Committee takes this opportunity to consolidate and harmonize the existing opinions on this subject.

          The Committee has consistently advised that in a particular proceeding, the presiding judge is ordinarily in the best position to assess whether his/her impartiality might reasonably be questioned when an attorney whom the judge knows socially, with whom the judge is acquainted, or whom the judge considers a friend appears before him/her (see Opinions 11-45; 07-26; 22 NYCRR 100.3[E][1]; cf. People v Moreno, 70 NY2d 403 [1987]). This issue is especially challenging because human relationships are so varied, fact-dependent, and unique to the individuals involved. Therefore, the Committee can provide only general guidelines to assist judges who ultimately must determine the nature of their own specific relationships with particular attorneys and their ethical obligations resulting from those relationships. When doing so, a judge should take into account such factors as the nature of his/her relationship with the attorney; the inter-relationships, if any, among and between their respective immediate and close family members; the frequency and context of their contacts; whether they or their respective family members have financial, political or other ties; and whether they or their respective family members share confidences (see e.g. Opinions 11-45; 08-166; 07-26; 06-149; 06-44).

         After reviewing its prior opinions, the Committee identifies three broad categories of interpersonal relationships between judges and lawyers who appear before them in order to assist them in evaluating their relationships so as to determine what, if any, ethical obligation those relationships impose on the judge.

I. Acquaintance

         The first category is acquaintance. In the Committee’s view, a judge is acquainted with an attorney when their interactions outside court result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc. For example, the judge and the attorney both attend bar association meetings (see Opinion 07-126 [judge and attorney appearing in judge’s court serve on a bar association elder law committee]), other professional gatherings, sporting or other school events involving their children; they patronize the same retail establishment; they see each other primarily when socializing with mutual friends, but not otherwise; they are members of the same country or golf club; or they attend the same religious services. Generally, neither will initiate social contact with the other, but they greet each other and interact cordially when they participate in common but not necessarily personally shared interests. In the Committee’s view, the mere fact that a judge is acquainted with and cordial to an attorney who appears before the judge when they come into contact outside the court - even if such contacts are regular or periodic - without more, is not a reasonable basis to question the judge’s impartiality (see 22 NYCRR 100.3[E][1]; Opinion 11-20; see also Opinion 09-234 [judge need not disclose nor disqualify if judge and attorney sit on same not-for-profit organization’s board of directors]).

         This category also includes situations that initially may appear to be personal or close but are in fact instances of ordinary social hospitality. Pursuant to §100.4(D)(5)(c) of the Rules Governing Judicial Conduct, a judge may accept ordinary social hospitality even from attorneys who appear before them (see Opinions 95-99 [Vol. XIII] [full-time judge may attend and participate in member/guest golf outing as guest of attorney who practices in judge’s court]; 91-136 [Vol. VIII] [judge may attend opening of new law office of attorney who appears in judge’s court ]; 89-23 [Vol. III] [judge may attend formal dinner party celebrating prominent attorney’s 75^th birthday when attorney’s firm appears in the judge’s court, and other judges and prominent attorneys are likely to attend]; 87-12 [Vol. I] [judge may attend ordinary holiday-type party given by a law firm or legal agency]; see also Joint Opinion 05-89/05-90 [judge need not disclose that attorney appearing in judge’s court attended judge’s annual holiday party).¹ A judge is not required to disclose such contacts nor to disqualify him/herself simply because the judge has participated in such events at the invitation of an attorney or law firm but is free to do so, even if a party appears without representation.

          Nevertheless, while such social contact is permissible, it is not without limitation. Accordingly, the judge should make reasonable efforts to avoid private social activity with attorneys appearing before the judge during actual trial days (see Opinions 92-22 [Vol. IX]; 95-99 [Vol. XIII]); the judge must refrain from ex parte discussion about matters pending in the judge’s court that involve the attorney (see Opinion 95-99 [Vol. XIII]); and the judge must avoid any actions that may be perceived to advance the private interests of an individual, office or other entity (see Opinion 06-170). Nor may such social contact occur if it would otherwise create an appearance of impropriety (see Opinions 92-22 [Vol. IX]; 06-170).

         When an attorney with whom a judge has such a relationship appears before the judge, neither disqualification nor disclosure is required as long as the judge believes he/she can be fair and impartial. Rather, any decisions to disclose the nature of the relationship and any subsequent disqualification are left solely in the judge’s discretion.

II. Close Social Relationship

         In contrast, if the relationship between a judge and an attorney can be characterized as a close social relationship, the judge must, at the very least, disclose the relationship either in writing or on the record, even if the judge believes he/she can be fair and impartial (see Joint Opinion 05-89/05-90). Whether the judge must disqualify him/herself when a party objects to the judge’s continued participation in the matter after such disclosure remains solely within the judge’s discretion (see People v Moreno, 70 NY2d 403 [1987]; Opinion 08-166). However, if a party appears without representation the judge must disqualify him/herself, and remittal is not permitted (see Opinion 08-204; Joint Opinion 07-114/07-120).

         For example, where an attorney worked for several years in the judge’s law firm while the attorney attended high school and college; worked for one year after graduating law school at a firm where the judge was a partner; subsequently maintained his/her own law practice in office space shared with the same law firm for two years; and for the last several years has maintained a personal relationship with the judge, during which time the judge’s children were members of the attorney’s wedding party; the judge, the attorney, and their spouses have dined together once a year; and the judge’s children cared for the attorney’s children, the judge and the attorney have a close social relationship (see Opinion 08-166). In the Committee’s view, the judge must fully disclose these facts and the nature of the relationship whenever the attorney appears before the judge and must exercise his/her discretion in determining whether to recuse upon request. The judge must also consider whether, given the circumstances and the rationale for any objection to his/her continued participation in the case, his/her impartiality can reasonably be questioned. If so, the judge must disqualify him/herself and exercise recusal (see id).

         If the judge decides to preside after fully disclosing the nature of the relationship with the attorney, the judge should put his/her reasons for doing so on the record (see Opinion 11-20).