Opinion 13-151

December 12, 2013

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         Under the circumstances presented, the Rules Governing Judicial Conduct do not prohibit a court attorney-referee from accepting a gift from long-time former clients who live overseas and have divested themselves of their New York real estate holdings and with whom the court attorney-referee established a warm personal rapport during their prior professional relationship.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(D)(5)(h); 100.4(H)(2); 100.6(A); Opinions 12-187; 11-50; 08-12; 07-198.

Opinion:

         The inquiring court attorney-referee states that, for approximately a decade, he/she represented certain members of a family on a broad variety of legal issues relating to several real properties located in New York. Throughout the representation, the inquirer’s clients resided overseas, but designated an in-state relative as their agent and manager with respect to the real property. The representation ended six years ago, and the inquirer recently heard from the former clients. He/She learned the former clients retained one of the successor attorneys he/she recommended and (with that attorney’s assistance) have divested themselves of the New York properties; the relative who formerly served as their agent and manager has also moved overseas. The former clients have now sent a letter in which they express gratitude for the attorney recommendation and for the inquirer’s “invaluable assistance through the years,” acknowledge a warm personal rapport between them, and enclosed a monetary gift that exceeds $150 to assist the inquirer’s children in preparing for college. The inquiring court attorney-referee asks whether he/she may accept this gift.

          The Committee previously has advised that court attorney-referees perform judicial functions within the judicial system and must therefore comply with the Rules Governing Judicial Conduct in the performance of their judicial functions, and otherwise so far as practical and appropriate use such Rules as guides to their conduct (see 22 NYCRR 100.6[A]; Opinions 11-50; 08-12; 07-198).

         A judge must 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 may not accept all gifts, the Rules Governing Judicial Conduct permit a judge to accept a gift from a donor who is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge (see 22 NYCRR 100.4[D][5][h]), so long as accepting the gift does not create an appearance of impropriety or otherwise violate any provision of the Rules, and subject to certain reporting requirements in the case of a full-time judge (see Opinion 12-187; 22 NYCRR 100.4[H][2]).

         It appears from the facts presented that the donors and their interests have never come before the inquirer in his/her quasi-judicial capacity. Moreover, it is highly unlikely that the donors or their interests will come before the inquirer – or, for that matter, before any judge or quasi-judicial official of the Unified Court System – as the donors now reside overseas and have divested themselves of their New York real estate holdings. Under the circumstances presented, the Committee can see no possible appearance of impropriety and, therefore, concludes that it is permissible to accept the gift under Section 100.4(D)(5)(h) (see 22 NYCRR 100.2; 100.4[D][5][h]).

         The Committee further concludes that the reporting requirement set forth in Section 100.4(D)(5)(h) applies to quasi-judicial officials. Therefore, the inquirer must report the gift in the same manner as a judge reports compensation in Section 100.4(H) (see 22 NYCRR 100.4[D][5][h];100.4[H][2]).

         The Committee notes that the inquiring court attorney-referee may contact the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50, for guidance on how Part 50 applies to his/her particular circumstances. (Contact: ETHICS HELPLINE: 1-888-28ETHIC.)