Opinion 12-107

June 14, 2012

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 support magistrate is not precluded from negotiating the purchase of an expensive leisure item from a seller who recognized the support magistrate’s name and spontaneously expressed gratitude for the support magistrate’s prior decision, where the decision was rendered two years ago and there are currently no pending or open issues in the matter, but the support magistrate must take certain precautions to avoid any appearance of impropriety.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(F); 100.4(D)(1)(a)-(c); 100.6(A); Opinions 11-149; 11-95; 11-64; 11-48; 09-134; 04-50; 99-163 (Vol. XVIII); 91-132 (Vol. VIII); 88-60 (Vol. II).

Opinion:

         The inquiring support magistrate states that he/she recently responded to an anonymous advertisement offering to sell an expensive item that is used for a leisure sporting activity.¹ The seller recognized the support magistrate’s name and spontaneously indicated that “[he/she] was grateful to [the support magistrate] as I had decided [a] matter in [his/her] favor” approximately two years ago. The support magistrate notes that there are no pending or open issues in the support proceeding, but there could be future hearings in the matter until the youngest child reaches the age of twenty-one. The support magistrate asks whether he/she may meet with the seller, view the item and potentially negotiate a purchase, and further asks whether he/she will be disqualified from participating in any further hearings on the seller’s support case.

         A person who performs judicial functions within the judicial system, such as a support magistrate, must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate” use such rules as guides to his/her conduct (see 22 NYCRR 100.6[A]; see also Opinion 11-48). Accordingly, a support magistrate 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]). A support magistrate also must not engage in financial and business dealings that may reasonably be perceived to exploit the support magistrate’s quasi-judicial position; involve the support magistrate with any business, organization or activity that ordinarily will come before the support magistrate; or involve the support magistrate in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court in which the support magistrate serves (see 22 NYCRR 100.4[D][1][a]-[c]; cf. 22 NYCRR 100.2[C] [a judge must not lend the prestige of judicial office to advance the private interests of the judge or others]). Finally, a support magistrate must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned or in other specific circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1]). Except as otherwise provided, disqualification is subject to remittal (see 22 NYCRR 100.3[F]).

         Preliminarily, the Committee observes that judges, in their capacities as private citizens, routinely engage in countless everyday purchases as well as negotiations for more expensive items such as a residence or a motor vehicle, or loans to finance such purchases, and such routine transactions do not ordinarily require a judge’s disqualification (see Opinion 04-50; see also Opinion 88-60 [Vol. II] [judge need not disqualify him/herself in cases involving crimes committed at a store where the judge shops, unless special circumstances militate otherwise]). Moreover, although the Committee expects that judges will not allude to their judicial status in their business transactions (see 22 NYCRR 100.2[C]; 100.4[D][1][a]; Opinion 09-134 [noting that, although a judge may bid on a foreclosed property, a judge “may not use his/her judicial office, or even appear to use it, to influence the sale”]), the Committee recognizes that others in the community may nonetheless be aware of such status. The Committee wishes to emphasize that a routine business transaction, or even an arms’-length business negotiation, is not rendered suspect merely because the seller manifests an awareness that the purchaser is a judge.

         Here, however, when the inquiring support magistrate indicated his/her interest in negotiating the purchase of an expensive leisure item that had been offered for sale anonymously, the seller immediately expressed his/her gratitude for a decision the support magistrate had previously issued. Under these circumstances, there is a risk that the seller’s reaction could create an appearance of an attempted quid pro quo, i.e., that the seller wishes to reward the support magistrate for a favorable decision (cf. Opinion 91-132 [Vol. VIII] [judge who presided in murder trial over a year earlier may not attend luncheon hosted by relative of murder victims to thank friends and neighbors for their love and support, as doing so creates an appearance of impropriety]). Although the seller’s conduct has thus inadvertently put the inquiring support magistrate in an uncomfortable position, the Committee notes that the support decision at issue took place two years earlier and the seller currently has no matters actually pending before the support magistrate.

         Accordingly, the Committee concludes that the inquiring support magistrate may proceed with the transaction, subject to certain precautions.

         First, the support magistrate should, to the extent feasible, ascertain and make a reasonable record of the approximate fair market value of the item in question. This will help dispel - if that ever becomes necessary - any reasonable perception that the transaction was a disguised gift or otherwise inappropriate (see 22 NYCRR 100.4[D][1][a]).²

         Second, because this is an expensive item that will require personal negotiations with an individual who spontaneously expressed gratitude for the support magistrate’s prior decision, the support magistrate is disqualified from matters in which the seller appears for two years following the date of the purchase (see 22 NYCRR 100.3[E][1]).³ The disqualification is subject to remittal, as long as all parties who have appeared and not defaulted are represented by counsel (see 22 NYCRR 100.3[F]).⁴

         After the two-year period elapses, the support magistrate must continue to disclose the transaction in matters in which the seller appears for an additional two year period, but may preside in any matters in which all parties are represented by counsel, as long as he/she determines that he/she can be fair and impartial. Because disclosure is mandated in lieu of disqualification, the support magistrate must disqualify him/herself if any party is appearing pro se (see Opinion 11-95).

         Of course, if the inquiring support magistrate questions his/her own ability to be impartial in a particular matter, then he/she must not preside regardless of whether the parties consent (see Opinion 11-64).

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     ¹The Committee notes that the item offered for sale in the advertisement typically represents a substantial investment, even when purchased second-hand.

     ²The Committee notes that a contemporaneous writing memorializing the advertised price, the fair market value, and the final negotiated price, could, in the event of any later questions about the transaction, help make clear that there was no actual impropriety.

     ³Under the facts presented, if the negotiations are unsuccessful, neither disclosure nor disqualification will be required solely on the basis of the failed negotiations (see Opinion 99-163 [Vol. XVIII]).

     ⁴The Committee has advised that remittal is not available if any party is proceeding pro se (see Opinion 11-149, relying on 22 NYCRR 100.3[F]). Where available, remittal is a three-step process. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and is willing to preside. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see id.).