Opinion 13-36

March 14, 2013

Digest:         A judge presiding in a criminal part may seek post-retirement employment with a not-for-profit organization that provides training and support services to prosecutors. Provided that the judge can be fair and impartial, the judge’s employment application will not by itself require disclosure or disqualification in a criminal matter unless the prospective employer is appearing or participating in the matter.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i);100.4; 100.4(A)(1)-(3); 100.4(D)(1)(c); Opinion 12-94; Joint Opinions 11-18/11-42; 05-35/10-78 (Revised).

Opinion:

         A full-time judge presiding in a criminal part asks if he/she may “explore the possibility” of part-time post-retirement employment at the New York Prosecutors’ Training Institute. According to the inquiring judge, the Institute is a not-for-profit organization with a mission to “provide comprehensive continuing education, training, advice and assistance to New York State prosecutors.” The judge states the organization’s staff attorneys are available to prosecutors for legal research and drafting, although the prosecutors who appear before the judge have sufficient staffing that they do not rely on the organization’s services. The judge further notes that although all 62 New York State district attorneys are listed on the organization’s website, the district attorney in the judge’s jurisdiction does not serve on the board of directors. The judge states that he/she has “no reason to believe” that any of the prosecutors who appear before the judge, or their colleagues, “would play any role in connection with” the judge’s application for post-retirement employment with the Institute.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In extra-judicial pursuits, a judge must seek to minimize conflict risks with judicial duties (see 22 NYCRR 100.4) and may not engage in extra-judicial activities casting reasonable doubt on the judge’s capacity to act impartially as a judge, that detract from the judicial office’s dignity, that interfere with the proper performance of judicial duties, or that are otherwise incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

         The Committee has advised that the Rules Governing Judicial Conduct do not preclude a full-time judge from seeking post-judicial employment with “law firms, governmental agencies or educational institutions” (Joint Opinion 05-35/10-78 [Revised]), or from applying for post-judicial employment “as a School Superintendent or School District Administrator, or as a private arbitrator” (Joint Opinion 11-18/11-42), subject to all ordinarily applicable limitations on extra-judicial activity throughout the application process (see id.).

         Likewise, the inquiring judge may apply for part-time post-retirement employment at a not-for-profit organization that provides continuing education, training, advice and assistance to prosecutors (see Joint Opinions 11-18/11-42; 05-35/10-78 [Revised]). As usual, the judge “must refrain from using official stationery or resources in soliciting potential future employers. And, any communication to such prospective employers may mention the judge’s current position and experience, in addition to including a resume or other relevant materials concerning the judge’s qualifications” (Joint Opinion 05-35/10-78 [Revised]).

         The novel question here is whether the inquiring judge may continue to preside over criminal matters after applying for post-judicial employment with an entity that provides support and training to prosecutors. With respect to disqualification when a prospective employer appears before the judge, the Committee has advised (see Joint Opinion 05-35/10-78 [Revised]) that:

Once a judge affirmatively seeks employment with a law firm by making an application for employment, lobbying for employment or otherwise actively pursuing employment, the judge must disqualify him/herself when that law firm subsequently appears in the judge’s court (see 22 NYCRR 100.3[E][1] [judge should exercise disqualification in a proceeding in which the judge’s impartiality might reasonably be questioned]; 100.4[D][1][c] [judge should not engage in financial and business dealings that involve the judge in continuing business relationships with lawyers likely to come before the court on which the judge serves]).

         The Committee applies the same standard to a prospective non-law firm employer that appears as a party before the judge (see Joint Opinion 11-18/11-42). Thus, once the Institute becomes the judge’s “possible prospective employer” within the meaning of Joint Opinion 05-35/10-78 (Revised), the judge is disqualified, subject to remittal where applicable, from matters in which the Institute appears or participates as counsel or as a party (see id. [describing in detail the judge’s obligations throughout the employment application process]).

         Here, however, the prospective employer is an entity that would not ordinarily appear before the judge; it is a not-for-profit organization that provides support services to prosecutors in other parts of the state. Although the judge presides in a criminal part, it appears from the facts presented by the judge that there is no substantial, relevant connection between the prosecutors who appear before the judge and the New York Prosecutors’ Training Institute. Therefore, neither disclosure nor disqualification is required in criminal matters solely on the basis of the judge’s application for employment with the Institute, assuming the Institute does not appear or participate in the matter.

         Of course, if the judge doubts his/her ability to be impartial in a particular matter, then disqualification is required (see 22 NYCRR 100.3[E][1][a][i]; Opinion 12-94).