Opinion 11-20

September 15, 2011

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 judge who has a close personal relationship with an attorney, must disclose the relationship’s nature and extent if the attorney appears before him/her and should exercise discretion in determining whether to disqualify him/herself after considering all relevant factors. If the judge decides to preside, he/she should put his/her reasons on the record.

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); Matter of Robert, 89 NY2d 745 (1997); Matter of Huttner, 2006 Ann. Rep. of NY Commn. on Jud. Conduct, at 193; Opinions 08-204; 08-166; 07-141; 07-26; 06-149; 06-54; 06-44; Joint Opinion 05-89/05-90; Opinions 04-78; 95-12 (Vol. XIII); 92-22 (Vol. IX); 89-112 (Vol. IX); 89-97 (Vol. IV).

Opinion: 

         A judge asks for guidance in determining when his/her relationship with an attorney is “sufficiently close” to require disclosure and/or disqualification. The judge states that he/she is well acquainted with the attorneys who practice in the region, and “most would consider themselves to be ‘friends’ to one extent or another.” The judge asks general questions about the nature of friendship and hypothetical questions about the possible termination of a friendship, as well as specific questions about the effect of the judge’s “close personal friendship with a prosecutor” on the judge’s ability to handle arraignments of defendants who are likely to be prosecuted by that particular assistant district attorney. If the judge can handle such arraignments, the judge further asks whether he/she may accept “bail recommendations from [that prosecutor], communicated through the arresting officer.” Finally, the judge asks whether he/she must disclose an attorney’s past service on the judge’s campaign committee when the attorney appears before the judge.

         A judge must always avoid impropriety and its appearance in all the judge’s activities (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]). A judge shall 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 whenever the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Clearly, a judge who cannot be impartial when a particular attorney appears before him/her 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 to reasonably be questioned is dependent upon the facts of each case.

         The mere fact that a judge is acquainted and cordial with an attorney who appears before the judge, without more, is not a reasonable basis for questioning the judge’s impartiality (see 22 NYCRR 100.3(E)(1); Joint Opinion 05-89/05-90). For example, the fact that an attorney attends a judge's holiday celebration does not, in and of itself, require the judge to disclose the attorney’s attendance should the attorney thereafter appear in the judge’s court (see Joint Opinion 05-89/05-90). The Committee also has previously advised that judges may socialize with attorneys, as long as they do not discuss pending matters and do not engage in private social activity with an attorney during a trial or other court appearance when the attorney is representing a party involved in the trial or other court appearance in the judge’s court (see Opinions 08-166; 07-141; 06-44; Joint Opinion 05-90/05-89; Opinion 92-22 [Vol. IX]). Therefore, neither disclosure nor recusal is required in such circumstances as long as the judge concludes that he/she can be fair and impartial (see Opinion 08-166; Joint Opinion 05-89/05-90; Opinion 92-22 [Vol. IX]).

         However, a judge who has a “close personal relationship” with an attorney must disqualify him/herself when the attorney appears before the judge (see Joint Opinion 05-89/05-90). In the Committee’s view, the judge is ordinarily in the best position to assess whether in a particular proceeding the judge’s impartiality might reasonably be questioned due to the personal relationship between the judge and the attorney (see Opinion 07-26; 22 NYCRR 100.3[E][1]). The judge should take into account factors such as the nature of the relationship, as well as the frequency and the context of the contacts (see e.g. Opinions 08-166; 07-26; 06-149; 06-44).

         For example, in Opinion 08-166, the Committee advised that a judge and an attorney had a minimal social relationship that, by itself, would not require disclosure or disqualification where:

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.

         Alternatively, in Opinion 06-149, the Committee advised that a judge and attorney had a close social relationship warranting disqualification where:

Once or twice a month, the attorney drives to the judge’s residence and they walk their dogs together. They have also dined at a restaurant a few times each year during the past two to four years, and have gone to the beach together. The attorney has also driven the judge, who is running for re-election, to campaign events and has attended social functions at the judge’s residence.

         Where the judge has a close social relationship with an attorney and all parties are represented by counsel, the judge should, at the very minimum, disclose the nature and extent of that relationship “so that a determination can be made whether under such circumstances, there is to be an informed consent to the judge’s presiding, or whether recusal” is required (Joint Opinion 05-89/05-90; see also 22 NYCRR 100.3[F]; Matter of Huttner, 2002 Ann. Rep. of NY Commn. on Jud. Conduct, at 113; Matter of Robert, 89 NY2d 745 [1997]). To ensure an informed consent, the judge’s disclosure must be made on the record and include all the facts concerning the judge’s relationship with the attorney. However, if any party is not represented, remittal is unavailable, and the judge should disqualify him/herself from the case (see Opinion 08-204).

         Here, the inquiring judge states that he/she has a “close personal friendship” with an assistant district attorney who may be assigned to prosecute defendants who are initially brought before the judge for arraignment. In the Committee’s view, the judge may handle defendant’s arraignments where this prosecutor does not appear, even if the judge believes that his/her close friend will eventually prosecute the matter. Whenever necessary, the judge should ask the arresting officer to consult with an assistant district attorney other than the judge’s close personal friend to obtain a bail recommendation. However, if no other assistant district attorney is available at the time, the judge may consider a bail recommendation that is made by his/her personal friend based on the “rule of necessity” (see Opinion 04-78).

         The Committee declines to answer hypothetical questions about a judge’s obligations if the judge were to “drift apart” from or “have a sudden falling out” with a formerly close attorney friend (see Opinions 95-12 [Vol. XIII]; 89-112 [Vol. IV]; 89-97 [Vol. IV]), except to note that the same standards apply in assessing whether a

judge’s disaffection for a particular attorney raises reasonable questions as to the judge’s ability to be fair and impartial.

         Finally, the judge asks whether he/she must disclose an attorney’s past service on the judge’s campaign committee. The Committee has previously advised that a judge’s obligations depend on the attorney’s level of involvement in the judge’s prior campaign (see Opinion 07-26). With respect to attorneys who served in leadership positions on the judge’s campaign, or maintained a continuing fund-raising role throughout the course of the campaign, the judge must disqualify him/herself from all matters in which those attorneys appear for two years following the end of the campaign, subject to remittal (see e.g. Opinions 07-26; 06-54; see generally Judicial Campaign Ethics Handbook §8.3, available at <http://www.nycourts.gov/reports/judicialcampaignethicshndbk.pdf>).