Opinion 14-30

March 13, 2014

Digest:         A judge who listed an attorney as a reference in the judge’s application for appointment or re-appointment need not disclose that fact and is not thereby disqualified from cases in which that attorney appears or that attorney’s partners and/or associates appear, provided the judge can be fair and impartial. The judge is not prohibited from appointing the attorney or his/her partners and/or associates to positions for which the attorney is eligible or his/her partners and/or associates are eligible, provided the judge exercises the power of appointment impartially and on the basis of merit.

Rules:          Judiciary Law §14; 22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(I); 100.3(E)(1)(a)-(f); Opinions 12-97; 11-64; 10-121; Joint Opinions 12-84/12-95(B)-(G); 03-93/04-32; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge states that he/she recently submitted an application for appointment or re-appointment to a particular court. As part of the application process, the judge was required to identify a number of references who “know me well in my business and/or professional life” over a certain period of time. The judge states that some of the judge’s references are attorneys who either routinely practice in the judge’s court or may appear in the judge’s court in the future. The judge asks whether he/she must now disclose or disqualify him/herself in matters where these attorneys or their partners and/or associates appear and whether the judge is now barred from appointing such attorneys or their partners and/or associates to fiduciary or other appointive positions.

         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]). A judge who is seeking appointment or re-appointment to judicial office is not a “candidate” (see 22 NYCRR 100.0[A]) and does not have a “window period” of permissible political activity (see 22 NYCRR 100.0[Q]) but, nonetheless, remains subject to all applicable provisions of the Rules Governing Judicial Conduct. Among other things, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14).

         Where, as here, the circumstances described do not appear to trigger specific grounds for disqualification (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14), the question is whether the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         In the election context, the Committee has advised that, because candidates seeking elective judicial office may appear before a political party’s screening panel, they “must [also] be permitted to provide a party screening panel with the names of individuals ‘who can meaningfully assess the [candidate’s] qualifications, character and temperament’” (Joint Opinion 12-84/12-95[B]-[G], quoting Opinion 11-64; but see Opinion 10-121 [judge is disqualified, subject to remittal, when a screening panel member appears “as a partner in a law firm that is the plaintiff in the case”]).

         Similarly, the Committee believes that the public can only benefit when individuals seeking appointment or re-appointment to judicial office are able to provide the appointing authority or its designee with the names of individuals “who can meaningfully assess [their] qualifications, character and temperament” and are also “familiar with the legal system” (Opinion 11-64; see also Joint Opinion 12-84/12-95[B]-[G]). When the individual seeking appointment or re-appointment is a sitting judge, it is very likely that some of the individuals who can most meaningfully assess the judge’s qualifications will be attorneys who have frequently appeared before the judge.

         The Committee has previously advised that a judge seeking re-appointment need not disclose or disqualify him/herself when a member of an applicable screening panel appears before him/her as an attorney (see Opinion 11-64). For example, a Housing Court judge is not required to recuse or offer to recuse, solely because an attorney appearing before the judge also serves on a 14-member Advisory Council that evaluates and makes recommendations to the appointing authority regarding re-appointments of Housing Court judges (see Joint Opinion 03-93/04-32). The Committee advised that “the fact of membership alone does not give rise to a necessary inference that the judge’s impartiality and independence are compromised or might be reasonably perceived to be compromised in such a situation” (id.). Clearly, attorneys who are listed as references on a judge’s application for appointment are even further removed from the decision-making process than those who serve on a formal Advisory Council of the type described in Joint Opinion 03-93/04-32. Each reference’s comments are among many factors that the appointing authority will consider in reaching a decision.

         Moreover, because individuals seeking appointment or re-appointment to judicial office must provide such references, it is the Committee’s view that a judge’s impartiality cannot reasonably be questioned simply for participating in this routine process (cf. Opinion 11-64 [judge’s impartiality ordinarily cannot reasonably be questioned when a member of a screening panel appears before him/her as an attorney]). Nor would it otherwise benefit the public to mandate disclosure, because such a requirement could discourage sitting judges from listing attorneys who frequently appear before them as references and could similarly discourage attorneys from agreeing to serve as references in the appointment process.

         Accordingly, the inquiring judge need not disclose or disqualify him/herself merely because an attorney the judge listed as a reference, or a partner or associate of such an attorney, appears before the judge. To the contrary, where disqualification is not mandated pursuant to the Rules (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law §14, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). However, the judge may, if he/she wishes, voluntarily choose to disclose that he/she listed a particular attorney as a reference, without incurring any obligation to disqualify him/herself (see Opinion 12-97).

         As always, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see 22 NYCRR 100.3[E][1][a][I]; Opinion 11-64).

         Finally, the Committee notes that a judge must, of course, exercise the power of appointment impartially and on the basis of merit (see 22 NYCRR 100.3[C][3]). Accordingly, the Committee concludes that the Rules Governing Judicial Conduct do not bar the inquiring judge from appointing an eligible attorney or his/her partners and/or associates to a fiduciary or other appointive position, even if the judge has listed the attorney as a reference, provided that the appointment is consistent with section 100.3(C)(3) and applicable law.