Opinion 15-169

September 10, 2015

Digest:         A judge who receives ongoing restitution installment payments from an individual, payable through a court-ordered intermediary organization, may preside in unrelated cases where that entity’s attorneys appear, if the judge can be fair and impartial. Disclosure of this relationship is not required.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinion 14-55.

Opinion:

         The inquiring judge, as a crime victim, is receiving court-ordered restitution from another individual, processed and paid through a third-party intermediary. The intermediary is a not-for-profit organization that also “provides legal assistance to litigants who on occasion may appear in [the judge’s court]. That assistance includes direct legal representation, including appearance by counsel.” The judge asks about his/her ethical obligations when the organization’s attorneys represent parties before him/her, while the installment payments are ongoing.

         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 must disqualify him/herself in specific circumstances required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]); Judiciary Law § 14) and in any other proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has advised that a judge who is called as a witness in a criminal case concerning threats allegedly made against the judge may nonetheless continue to preside over unrelated matters involving the attorneys who are prosecuting or defending the criminal case, provided the judge concludes he/she can be fair and impartial in the matters before him/her (see Opinion 14-55). Notably, the Committee observed that the attorneys involved in the criminal case are there solely in their professional and representative capacities and are uninvolved in the underlying criminal activity, i.e., the alleged threats against the judge (see id.).

         Similarly, here, while a particular individual was sentenced to pay restitution to the judge, the intermediary organization is involved solely in a formal capacity as a conduit to process those payments to the judge. If the organization’s attorneys have any involvement whatsoever in processing these payments, they do so solely in their professional and representative capacities and likewise have no connection to the underlying crime against the judge. As such, the judge’s impartiality cannot reasonably be questioned when the intermediary represents other litigants in matters unrelated to the crime for which the judge is receiving restitution payments (see 22 NYCRR 100.3[E][1]).

         Thus, if the judge concludes he/she can be fair and impartial, he/she may preside in such unrelated matters involving lawyers from an entity serving as a court-ordered intermediary for a third party’s ongoing restitution payments to the judge. Similarly, disclosure of this remote relationship is not required.