Opinion 12-21

January 26, 2012

Digest:         A judge may offer his/her private law library for free to members of a local bar association on a “first come, first serve basis,” and need not disclose or disqualify him/herself from matters in which an attorney recipient appears.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.4(D)(5); Opinions 11-125; 06-44.

Opinion:

         The inquiring judge wishes to dispose of the extensive law library he/she acquired while in private practice and asks whether he/she may give the books to members of a local bar association on a “first come, first serve basis.” The judge further asks whether he/she must disclose the gift of the books or disqualify him/herself if attorneys who take the books appear before him/her.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Although the Rules Governing Judicial Conduct explicitly restrict a judge’s acceptance of a gift, bequest, favor or loan (see generally 22 NYCRR 100.4[D][5]), they do not impose equivalent restrictions on gifts a judge may make. For example, the Committee has advised that after a judge attends an attorney’s wedding and gives the attorney a wedding gift, whether disclosure and disqualification are subsequently required when the attorney appears before the judge “depends on whether the invitation was born of a ‘close social relationship’ between the judge and the attorney” (Opinion 06-44; see also Opinion 11-125).

         In the Committee’s view, a judge’s offer to give his/her law library to any member of a local bar association on a “first come, first serve basis” does not create an appearance of impropriety (see 22 NYCRR 100.3[E][1]). Moreover, because the gift will be made available to all local attorneys on a equal basis, there is no reasonable inference that an attorney who has benefitted from the judge’s generosity has any relationship with the judge that might warrant disclosure or disqualification (cf. Opinion 06-44; 22 NYCRR 100.2[B]).

         Accordingly, the judge may offer his/her private law library for free to members of a local bar association on a “first come, first serve basis,” and need not thereafter disclose the gift or disqualify him/herself from matters in which an attorney recipient appears (see 22 NYCRR 100.3[E][1]).