Opinion 15-122

June 11, 2015

Please Note: While it does not affect the outcome here, see AO-347 concerning the status of Sections 100.4(D)(5)(h) and 100.4(H)(2).

Digest:         A judge may not accept a gift of a food platter from a former judge, now practicing in the judge’s court, or from a bar group on the former judge’s behalf. 

Rules:          22 NYCRR Part 50; 50.1(I)(C); 100.2; 100.2(A); 100.2(C); 100.4(D)(5)(a)-(h); 100.4(H); Opinions 14-74; 13-151; 05-80; 04-70.

Opinion:

         A full-time judge asks if he/she may allow a former judge, who now appears as a lawyer before the judge, to give the judge and his/her staff a food platter. Alternatively, the judge asks whether he/she may accept the food platter as a gift from a local bar association, and, if so, whether the former judge may personally deliver the food platter donated by the bar association.

         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]). Although a judge may not accept all gifts, the Rules Governing Judicial Conduct permit a judge to accept certain specified categories of gifts (see 22 NYCRR 100.4[D][5][a]-[g]) or 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 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 13-151; 22 NYCRR 100.4[H]).

         The Committee has advised that neither a judge nor his/her law secretary¹ may accept a “scholarship” to attend a private, for-profit legal seminar sponsored by an attorney who practices law in the judge’s court (see Opinion 04-70), although a judge may accept free admission if the attorney sponsor “has not appeared, and is not likely to appear, in the judge’s court” (Opinion 14-74). Conversely, the Committee has advised that a judge may accept an invitation to attend a legal seminar sponsored by a bar association committee that focuses on practice in the judge’s specialty part (see Opinion 05-80; 22 NYCRR 100.4[D][5][a]). The Committee explained that “neither the bar association nor its subcommittee, as entities, are likely to have any transactions with the court” (Opinion 05-80).

         Here, a former judge, who now practices before the court, wishes to provide a food platter to the inquiring judge and his/her staff as a gift. A food platter does not appear to fall within any of the specifically enumerated exceptions (see 22 NYCRR 100.4[D][5][a]-[g]). Nor is it permitted under the catch-all exception, which applies only if “the donor 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]; cf. Opinion 13-151 [a quasi-judicial employee may accept a gift by a former client whose interests have not, and will likely never, come before him/her]). There is no special exception for gifts from former judges who have returned to private practice in the New York state courts. Indeed, if the inquiring judge were to accept gifts from a practicing attorney who is a former judge, without strict compliance with Section 100.4(D)(5), the public might reasonably infer that the attorney’s status as a former judge places him or her in a special position to influence the judge (see 22 NYCRR 100.2[C]). The former judge must be held to the same standards as any other attorney practicing before the court.

         The alternative proposal, that the bar association (rather than the former judge) be identified as the donor of the food platter, appears to be a mere subterfuge orchestrated to deliver an impermissible gift from a practicing attorney. The Committee notes that a food platter delivered to the court facility for the private enjoyment of the inquiring judge and his/her staff is not the equivalent of free admission to a bar-sponsored function (see 22 NYCRR 100.4[D][5][a]), and is unlikely to improve the law, the legal system, or the administration of justice or serve any educational purpose (cf. Opinion 05-80; 22 NYCRR 100.4[D][5][a]). Nor does bringing a food platter to the court become “ordinary social hospitality,” merely because it is given in the name of a bar association (see 22 NYCRR 100.4[D][5][c]). Where, as here, the inquiring judge is fully aware of the subterfuge, the appearance of impropriety is not diminished by having the bar association deliver a food platter on behalf of a practicing attorney.

         Accordingly, the judge may not accept the food platter. 

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         ¹ Part 50 of the Rules of the Chief Judge prohibits nonjudicial court employees from soliciting, accepting or agreeing to accept any gifts or gratuities from any persons having or likely to have any transactions with the court system (see 22 NYCRR 50.1[I][C]). For guidance on Part 50, nonjudicial court personnel may consult the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50 (see Opinion 05-80; Contact: ETHICS HELPLINE: 1-888-28ETHIC).