Opinion 12-104

June 14, 2012

Digest:         A judge (1) may solemnize the marriage of an attorney who regularly appears before the judge; and (2) will not, on that sole basis, incur any new or additional disclosure obligations.

Rules:          Judiciary Law §14; Domestic Relations Law §11(3); General Municipal Law §805-b; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(F); Opinions 11-125; 11-101; 11-87; 08-136; 06-44.

Opinion:

         An assistant district attorney who regularly appears in a criminal part before the inquiring judge has asked the judge to officiate at his/her wedding. The judge states that the attorney “has tried a few cases” before the judge and has appeared for a portion of the judge’s calendar day “about once a month” over the past year, but that the judge has no other relationship, whether “social, personal or economic,” with the attorney, or the attorney’s future spouse, or their respective families. The inquiring judge indicates that he/she has not previously accepted payment for officiating at a wedding and would not accept payment here.¹ The judge asks whether it is ethically permissible to officiate at the attorney’s wedding and if doing so will create any disclosure obligations for the judge when the attorney appears either before or after the ceremony.

         A judge is one of several officials authorized by law to solemnize marriages (see Domestic Relations Law §11[3]). Nevertheless, 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).

         The Committee has previously advised that a judge may be a guest at the wedding of an attorney who regularly appears before the judge and give the couple a gift (see Opinions 11-101; 06-44) but should not attend when the attorney is appearing in a trial before the judge (see Opinion 06-44). It is also the Committee’s view that a judge who is authorized by law to solemnize a marriage is not precluded from doing so simply because a member of the couple is an attorney who regularly appears before the judge.

         With respect to disclosure obligations, in Opinion 11-125 n1, the Committee has advised:

While a purely professional relationship would not normally require disclosure, [attending] a wedding can be perceived as evidencing a closer social relationship which warrants disclosure for a limited period of time (see Opinion 06-44). Thus, although a judge considers his/her relationship with an attorney who occasionally appears in a judge’s court as purely professional and the attorney, therefore, an acquaintance, if the judge attends the attorney’s wedding, the judge must, for a reasonable period of time thereafter, disclose that he/she did so (see Opinion 11-101).

         Although attending an attorney’s wedding as a social guest clearly suggests a social relationship between the judge and the attorney, the Committee notes that many judges officiate at weddings for strangers and professional acquaintances, simply because they are authorized by law to do so (see Opinion 11-87; Domestic Relations Law §11[3]). Therefore, the Committee believes that the mere fact that a judge has solemnized an attorney’s marriage, without more, is not reasonably perceived as evidencing a social relationship between the judge and the attorney.

         Whether a judge’s overall relationship with an attorney causes a judge’s impartiality to reasonably be questioned depends on the facts of each case (see Opinion 11-125). Therefore, if a judge is motivated to officiate at a wedding, in whole or in part, by a pre-existing relationship between the judge and the attorney, that underlying relationship must be analyzed using the criteria set forth in Opinion 11-125. But, as always, 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]).

         The inquiring judge states that his/her relationship with the attorney is strictly professional; that being so, the inquiring judge may preside over matters in which the attorney appears, even if the judge agrees to officiate at the attorney’s wedding, provided that the judge believes he/she can be fair and impartial.

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     ¹The permissibility of accepting compensation for solemnizing a marriage is primarily a legal matter (see Opinion 08-136; General Municipal Law §805-b).