Opinion 15-23

June 11, 2015

Digest:         A judge who teaches at a law school, and has no role in a pro bono clinical program organized as a separate legal entity from the law school, may appoint the clinic and its qualified participants to fiduciary positions, and may award appropriate fees as the applicable rules and law permit.

Rules:          Judiciary Law § 14; 22 NYCRR 36.0; 100.0(D); 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(a)-(f); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time judge is employed part-time as an adjunct professor at a law school which has established a clinical program, organized as a separate legal entity from the law school, and approved for certain fiduciary appointments. It appears the clinic’s legal services are offered primarily as a pro bono educational opportunity for the law school’s students. Nonetheless, in some cases, a judge may award the clinic modest legal fees, substantially less than regular practitioners would charge, payable from certain fiduciary-held assets. The Unified Court System limits these fees to an aggregate maximum of $40,000 per year. On these facts, the judge asks if he/she may appoint this clinical program as a pro bono court evaluator or counsel for the alleged incapacitated person in article 81 guardianship proceedings, and award fees for such service where appropriate. If so, the judge also asks if disclosure is necessary, explaining he/she has absolutely no involvement with the clinic in his/her capacity as an adjunct faculty member of the law school.

          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, impartiality, and independence (see 22 NYCRR 100.2[A]). A judge must exercise the power of appointment “impartially and on the basis of merit” and “avoid nepotism and favoritism” (22 NYCRR 100.3[C][3]). Part 36 similarly provides that a judge must make appointments “on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case” (22 NYCRR 36.0). A judge must disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including when the judge “has an economic interest in the subject matter in controversy” (22 NYCRR 100.3[E][1][c]). “Economic interest” includes “a relationship as officer, director, advisor or other active participant in the affairs of a party” (22 NYCRR 100.0[D]). Conversely, where disqualification is not mandatory under the objective criteria set forth by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         While the judge may be an “active participant” in the law school due to his/her employment by the school, it appears the law school’s pro bono clinic is organized as a separate legal entity from the law school, and the judge has no relationship whatsoever with that entity in any extra-judicial capacity. Accordingly, the judge’s impartiality cannot reasonably be questioned in matters involving the clinical program, based solely on the judge’s part-time employment as an adjunct professor at the law school. Absent any other potentially disqualifying factor, and assuming that the judge concludes he/she can be fair and impartial, the judge may appoint the clinic and/or its participants to Part 36 or other appointments for which they are qualified and award appropriate fees as the rules and law permit(see 22 NYCRR pt 36; 100.3[C][3]). The Committee also concludes the judge is not ethically required to disclose his/her part-time employment with the law school in matters involving the pro bono clinical program, although the judge may do so in his/her discretion.