Opinion 16-155

October 20, 2016

Digest:         A judge who, on learning of his/her second-degree relative’s informal counseling relationship with a defendant, promptly disclosed the relationship to both sides and advised his/her relative in writing not to discuss the case or the defendant in his/her presence, may continue to preside in the case, provided the judge can be fair and impartial. The judge must continue to take reasonable steps to discourage and limit ex parte communications. If such communications nonetheless occur, the judge may dispel any appearance of impropriety by disclosing them to both sides.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-106; 15-93; 14-41; People v Moreno, 70 NY2d 403 (1987).

Opinion:

A judge’s second-degree relative,¹ in his/her capacity as a member of a religious institution, is informally counseling a fellow worshipper. Unfortunately, that individual is a defendant before the judge in a high-profile criminal matter. On learning of the relationship, the judge promptly disclosed it to counsel for both sides. The judge further advised his/her relative, in writing, not to discuss the case or the defendant in the judge’s presence. Because the judge’s relative is not a lawyer, the judge carefully explained and emphasized the importance of this request using simple, direct language to avoid any possible misunderstanding. The judge and his/her relative do not socialize privately, but see each other at family functions. Although the judge is uncertain about the relative’s willingness to comply with the judge’s instructions, the judge is firmly resolved not to engage in any ex parte conversations concerning the case and is confident he/she can be entirely fair and impartial. The judge asks if he/she may continue to preside in the case, and more generally requests guidance about how to proceed.

         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 not “initiate, permit, or consider ex parte communications” (22 NYCRR 100.3[B][6]) and must not allow family or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]). Further, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

Disqualification

There are two objective tests to determine if disqualification is mandatory. The first question is whether any specific enumerated statutory grounds for disqualification are present (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). This could occur, for example, if this judge learned that his/her second-degree relative was “acting as a lawyer in the proceeding” or was “likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]) or if the judge’s second-degree relative had “an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][d][iii]).

Where, as here, no such circumstances apply, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). Significantly, while the judge’s non-attorney relative has gratuitously chosen to counsel the defendant in some manner, it does not appear to be a professional relationship, as between a physician and patient, or attorney and client. There is no indication of a financial or business relationship between them. Instead, the judge’s relative and the defendant are both members of the same religious institution, and their counseling relationship has arisen in that context. The Committee sees little risk here of a public perception of impropriety, given the judge’s prompt disclosure to counsel for both parties and the judge’s written instructions to his/her relative emphasizing the need to avoid any communications about the case.

Thus, because disqualification is not mandated under objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]). As the judge has searched his/her conscience and is confident he/she can be impartial, he/she may preside.

Risk of Ex Parte Communications

The remaining issue is the risk that the judge’s relative will expose the judge to impermissible ex parte communications at family functions. The Committee has recognized that judges cannot control the conduct of third parties. Thus, a judge’s obligation is generally to “discourage any discussion of a case that is currently pending before the judge” (Opinion 15-93 [emphasis added]). In the Committee’s view, this judge has already done so by sending a letter advising his/her relative not to discuss the case or the defendant in his/her presence.

Nor must the judge eschew family gatherings merely because there is a possibility that the judge’s relative may try to discuss one of the judge’s cases. Indeed, a judge may attend a fund-raising dinner for a non-profit organization whose volunteers sometimes accompany complaining witnesses in domestic violence cases before the judge (see Opinion 14-41). However, “to avoid any possible appearance of impropriety, such as the appearance that the judge is permitting others to subject him/her to improper ex parte communications, the judge should absent him/herself if there is any discussion of a case that is currently pending before the judge” (id.). Here, too, if the judge finds he/she cannot reasonably dissuade or discourage his/her relative from discussing the case near him/her at a family function, the judge may move to another room or take other reasonable steps to dissociate him/herself from the conversation.

Moreover, the judge need not necessarily disclose a brief, non-substantive ex parte communication from his/her relative which alleges no relevant facts and which the judge will not consider in deciding the case. In Opinion 15-106, an attorney accosted a judge at a bar association function while he/she had a case before the judge. The “judge attempted to discourage the attorney from speaking to him/her, and the attorney stated that he/she knew the appropriate parameters. The attorney soon engaged another nearby attorney in conversation, mentioning his/her recent appearance before the inquiring judge and praising the judge’s handling of bench conferences” (id.). The Committee concluded disclosure was not required (id.).

Finally, the Committee notes that an impermissible ex parte communication, if it occurs, may generally be dispelled by disclosing it to all sides.

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         ¹ A relative within the second degree of relationship includes a grandparent, parent, sibling, child, or grandchild of the judge or the judge’s spouse, or the spouse of such a person.