Opinion 14-90

June 12, 2014

Digest:         A judge’s social relationship with the deputy director of a legal services organization does not, alone, require disqualification or disclosure when the deputy director’s subordinates appear before the judge.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 12-85(B); 11-139; 11-64; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge who refers a certain category of defendants to a local legal services organization advises that he/she is “a long-time, close personal friend” of the current deputy director of the organization. The judge states that the deputy director does not make court appearances, but directly supervises the staff attorneys who appear before the judge. The judge asks whether disclosure or disqualification is required when a staff attorney who reports to the deputy director appears before the judge. The judge further asks whether he/she may instead ask the deputy director to “insulate [him/herself] from any case in which [his/her] office may be involved in my court.”

         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]). In particular, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         There are two initial objective questions to consider when determining if disqualification is required. The first is whether disqualification is mandated under the specific circumstances in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. Where, as here, none of those enumerated circumstances applies, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under the objective standards of those two questions, 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]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside, i.e., no remittal is possible (see Opinion 11-64).

         There is no indication in the present inquiry that the judge has any direct relationship – social, professional, or otherwise – with the staff attorneys who report to the deputy director. The Committee has advised that, even where a judge has a social relationship with an attorney that may require disqualification or disclosure when that attorney appears, “this obligation does not automatically extend” to the attorney’s law firm colleagues (Opinion 12-85[B]). The Committee likewise believes the inquiring judge’s impartiality cannot “reasonably be questioned” merely because an attorney appearing before the judge reports to an individual who is the judge’s long-time, close personal friend (see Opinion 12-85[B]; 22 NYCRR 100.3[E][1]). Accordingly, provided the judge concludes he/she can be fair and impartial, the judge need not disqualify him/herself or disclose his/her relationship with the organization’s deputy director when other attorneys from the organization, including those the deputy director supervises directly, appear before the judge.

         Regarding the alternative solution the judge proposes, the Committee notes it is unnecessary under these facts, and it could potentially be perceived as an attempt to intervene in the organization’s staffing decisions (cf. Opinion 11-139 [a judge should not intervene in a Public Defender’s staffing decisions]).