Opinion 16-133

September 8, 2016

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A judge may preside in matters involving an attorney who hosted a single fund-raiser for the judge’s law clerk’s election campaign, but must insulate the law clerk and disclose the insulation during the campaign. This obligation ends on Election Day.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 16-66; 15-196; 14-169; 08-152; 07-26; 03-64; 01-07; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge whose law clerk is running for judicial office asks if he/she may preside in matters involving an attorney who hosts a single fund-raiser for the law clerk’s campaign.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in any case where the judge’s impartiality may reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in any circumstance required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). If disqualification is not mandated under these objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         Where an attorney is involved in a judge’s election campaign, the Committee has advised that “only ‘active’ conduct in support of a judicial campaign requires recusal” (Opinion 15-196, quoting 08-152). The extent of the judge’s obligation “depends on the level of the [attorney’s] involvement” in the campaign (Opinion 07-26). Thus, where an attorney organizes a single fund-raiser for a judicial candidate, the judge is disqualified, subject to remittal, when the attorney appears before the judge during the campaign; after the election, neither disclosure nor disqualification is required (see Opinions 03-64; 01-07 [“Once the campaign is concluded, the limited involvement in a discrete event early in the campaign should not give rise to a possible inference of partiality”]).

         Here, the attorney is hosting a single fund-raiser for the law clerk, rather than the judge. Under these circumstances, a judge who concludes he/she can be fair and impartial in matters involving the attorney need not offer to recuse, but may instead insulate the law clerk to dispel any appearance of impropriety.

Thus, during the law clerk’s campaign, the judge must insulate the law clerk from all cases involving the attorney and disclose the insulation. Because disclosure is mandatory during this period, the judge must disqualify him/herself if a party is appearing without counsel or the judge is unwilling or unable to make full disclosure (see e.g. Opinions 16-66; 14-169).

         As the attorney has no ongoing leadership or fund-raising role in the law clerk’s campaign, but is only hosting a single fund-raiser, the need for disclosure and insulation of the law clerk ends on Election Day (cf. Opinions 03-64; 01-07).