Opinion 11-23

March 9-10, 2011

Digest:         A judge need not disclose that he/she referred a client to an attorney who is currently appearing before the judge on other matters.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); Opinions 97-60 (Vol. XV); 93-89 (Vol. XI); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge recently recommended an attorney to an individual who ultimately retained the attorney. The judge says the recommended attorney occasionally appears before the judge on other matters and asks if disclosure or disqualification is required.

         A judge must avoid even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]). A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others and shall not convey or permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must also disqualify him/herself in a proceeding when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

          The Committee has previously advised that a judge may recommend an attorney to a friend or acquaintance, as long as the judge does not preside over the case, and the judge makes clear that it is not an official recommendation (see Opinion 93-89 [Vol. XI]). In addition, the Committee has further “suggest[ed] that whenever a judge is asked to recommend, and is willing to recommend an attorney to any other individuals, the judge should consider referring the individual to the local bar’s attorney referral service or should recommend not [fewer] than three attorneys for consideration” (Opinion 97-60 [Vol. XV]).

          In the Committee’s view, absent any social or other personal or special relationship between the judge and the attorney and absent any financial or other benefit to be gained by the judge from the reference, there is no reasonable basis to question the judge’s impartiality. Therefore, the judge need not disclose the referral or disqualify him/herself from other matters involving the attorney, as long as the judge concludes that he/she can be fair and impartial (see 22 NYCRR 100.3[E][1]; People v Moreno, 70 NY2d 403 [1987]).

         To reduce any possible risk of public criticism or even potential ill will on the part of individual attorneys who might wish the judge to recommend their services, the Committee suggests that the inquiring judge should, in the future, consider either referring individuals to a bar association’s attorney referral service or providing no fewer than three attorneys’ names for an individual to consider (see Opinion 97-60 [Vol. XV]).