Opinion 14-157

October 23, 2014

Digest:         A part-time judge who provides advice to certain municipal attorneys on municipal issues in the judge’s capacity as counsel to a nongovernmental association, but who has no attorney/client relationship with such attorneys, may preside in unrelated cases when such attorneys appear on behalf of private clients.

Rules:          Judiciary Law §§ 14, 471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4(D)(1)(a)-(c); 100.6(B)(2)-(4); Opinions 13-54; 11-64; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring part-time judge also serves as counsel to a particular nongovernmental association whose members are elected and appointed municipal officials and employees.¹ In this nonjudicial capacity, the judge acts as a resource to certain municipal attorneys on issues involving their municipalities, though the judge has no attorney/client relationship with any of those attorneys. Instead, the judge states the association itself is his/her sole client, rather than any individual association member. The judge characterizes his/her role as the association’s counsel as “akin to what the staff attorneys do at the Resource Center for Town and Village Courts” who provide research assistance to town and village justices. Under these facts, the judge asks about his/her ethical obligations when an attorney, with whom the judge has spoken “on matters related to the [municipality] that [he/she] represents,” later appears before the judge with “a private client on a matter unrelated to ....the municipality.”

          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]). Judges are prohibited from engaging in financial and business dealings that may reasonably be perceived to exploit their judicial positions; that may involve them with any business, organization or activity that ordinarily will come before them; or that may involve them in frequent transactions or continuing business relationships with lawyers or others likely to come before the court on which they serve (see 22 NYCRR 100.4[D][1][a]-[c]). A part-time judge may nonetheless accept private employment, “provided ...[it] is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]). A part-time lawyer/judge also may practice law, subject to certain limitations (see e.g. 22 NYCRR 100.6[B][2]-[3]).

         One limitation requires a judge to bar his/her partners or associates from practicing law in the court where he/she presides, even before its other judges (see Judiciary Law § 471; 22 NYCRR 100.6[B][3]). Under the circumstances presented, it appears the relationship between the inquiring judge and the municipal attorneys he/she advises on issues relating to their municipalities is not akin to that of law firm partners or associates. For example, there is no indication that they share legal fees or otherwise hold themselves out as practicing law together. To the contrary, it appears that each owes duties as an attorney to a separate legal entity. Accordingly, the Committee concludes that Section 100.6(B)(3) does not require the inquiring judge to bar the municipal attorneys from appearing before him/her.

         A judge also must “disqualify him or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]). There are two objective tests to determine if disqualification is mandated. The first is whether disqualification is required by specific language in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14. Since, here, no rule or statute expressly disqualifies the judge, the next issue is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). Clearly, if the municipal attorney were the judge’s current or recent client, the Committee’s prior opinions would require disqualification (see e.g. Opinion 13-54). Here, however, the judge expressly says there is no attorney-client relationship. Thus, the judge’s impartiality cannot reasonably be questioned if a municipal attorney, who only consulted this judge on municipal issues, appears before him/her with a client in an unrelated case. As disqualification is not mandated under either objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Thus, the judge may preside, unless he/she doubts his/her impartiality in a specific matter (see Opinion 11-64).

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         ¹ Officials and employees of the municipality in which the judge presides are not eligible to join the association.