Opinion 12-185

 December 13, 2012

Digest:         A judge may accept an invitation to be the dinner guest of attorneys who have regularly appeared in the judge’s court, if the dinner qualifies as ordinary social hospitality.

Rules:          22 NYCRR Part 50; 100.2; 100.2(A); 100.4(D)(5); 100.4(D)(5)(c); Opinions 11-125; 11-101; 07-141; 06-172; 06-44; 05-80; 95-99 (Vol. XIII); 87-15(c) (Vol. I); 87-15(a)(b) (Vol. I).

Opinion:

         The inquiring judge has recently been re-assigned and will no longer preside in cases involving a specialized area of the law. In recognition of the inquiring judge’s service, the attorneys who regularly practice in that area of law and who have regularly appeared in the judge’s specialized part, including both plaintiffs’ and defendants’ counsels, have invited the judge and the judge’s law clerk to be their guests for dinner. The judge notes that most of the attorneys are from outside the judicial district in which the judge presides, and some are out-of-state attorneys who appeared pro hac vice. The judge asks if he/she may accept the invitation.

         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]). Although a judge is generally prohibited from accepting gifts except as permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[D][5]), a judge may accept “ordinary social hospitality” (22 NYCRR 100.4[D][5][c]).

         In interpreting the gift rule, the Committee has advised that a judge may attend an ordinary holiday party or similar social function hosted by a lawyer, law firm, or legal agency (see Opinion 87-15[a][b] [Vol. I]); a bar association dinner as an attorney’s guest (see Opinion 87-15[c] [Vol. I]); a member/guest golf outing as an attorney’s guest (see Opinion 95-99 [Vol. XIII]); the wedding of an attorney who regularly appears before the judge (see Opinions 11-101; 06-44); and, a party for the public defender’s spouse and a religious function for a law guardian’s child (see Opinion 07-141).¹

         The Committee has observed that “ordinary social hospitality” does not include “a party that provides guests with a complete dinner at an expensive restaurant, a cruise, or like affair that is more expensive or lavish than an ordinary party” (Opinion 87-15[a][b] [Vol. I]). Rather, a buffet or sit-down dinner that is not unusually expensive or lavish is permissible (see Opinion 06-172). And, to avoid even the appearance of impropriety (see 22 NYCRR 100.2) a judge should not accept an invitation extended in the midst of a trial or other currently, actively contested proceeding if the host attorney or law firm is an active participant in the matter (see Opinion 87-15[c] [Vol. I]).

         Subject to the same limitations, the inquiring judge may accept a dinner invitation from attorneys who have regularly appeared in the judge’s specialized court. The Committee notes that any possible appearance of impropriety is minimized where, as here, the invitation has been extended jointly by attorneys on both sides (here, plaintiffs’ counsel and defendants’ counsel who regularly practice in this area of law), who are unlikely to appear before the judge after his/her re-assignment.

         However, the Committee takes no position on whether the Rules Governing Conduct of Nonjudicial Employees (22 NYCRR Part 50) permit the judge’s law clerk to accept this invitation. That question must be resolved by the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50. (Contact: ETHICS HELPLINE: 1-888-28ETHIC).

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     ¹ For guidance on possible disclosure or disqualification implications, please see Opinion 11-125.