Opinion 17-106

October 19, 2017

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:         (1) A support magistrate and his/her family may (a) accept donations and services from a not-for-profit organization for their special-needs child and (b) permit the organization to describe the project on its website and permit media coverage, provided the support magistrate takes reasonable steps to ensure his/her quasi-judicial position is not exploited for fund-raising or promotional purposes.

(2) The support magistrate should contact the Unified Court System’s Ethics Commission concerning any possible reporting obligations.

(3) If the support magistrate becomes aware a person appearing before him/her has donated time, money or services to the project, he/she must fully disclose for six months following the donation. As long as no party appears without counsel, the support magistrate may preside after disclosure as long as he/she can be fair and impartial. However, if a party is appears without counsel during this period, the support magistrate may not preside. If the donation was modest, the support magistrate has no further duty to disclose or recuse once the six-month period elapses.

Rules:          22 NYCRR 40.1; 40.2; 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(D)(5); 100.4(D)(5)(b); 100.4(I); 100.6(A); Opinions 17-08; 15-42; 12-107; 09-186; 06-105; 95-119; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         The inquiring support magistrate, a parent of a young child with significant developmental and physical limitations, asks if his/her family may seek financial help and services offered by not-for-profit organizations for the benefit of such children and their families.¹ If so, he/she further asks if his/her obligations concerning publicity, any reporting requirements, and what to do if he/she knows an individual appearing before him/her “donated their time, money or services to the project.”

         A support magistrate exercises quasi-judicial functions and is thus bound by the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]; Opinions 12-107; 95-119). A support magistrate must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must disqualify him/herself in a proceeding in which his/her “impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         A support magistrate’s extra-judicial activities may not cast reasonable doubt on his/her impartiality, detract from the dignity of his/her office, or interfere with his/her official duties (see 22 NYCRR 100.4[A][1]-[3]). Thus, he/she generally “shall not accept, and shall urge [family members] not to accept, a gift” absent an exception (see 22 NYCRR 100.4[D][5]). One exception permits receiving a gift “incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge’s household, including gifts ... for the use of both,” if it “could not reasonably be perceived as intended to influence the judge in the performance of judicial duties” (22 NYCRR 100.4[D][5][b]).

         We recognize the unique nature of the parent-child bond (see Opinion 15-42), particularly apropos for a special-needs child. Here, he/she will clearly and unambiguously be acting in his/her role as a parent (id.) The proposed donations and services are designed solely to enhance the quality of life for the support magistrate’s child. These circumstances show no possible appearance the gift could be intended to influence said magistrate in performing his/her duties. Thus, the support magistrate may accept donations and/or services from non-profit entities such A Room to Heal or the Make-A-Wish Foundation.

         Generally, “a judge ... participating in a permissible extra-judicial activity is not required to hide his/her identity as a judge” (see Opinion 09-186, quoting Opinion 06-105). Nonetheless, a judge also must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Here, the magistrate may permit the charitable entity to describe the services or project on its website along with family photographs, and may also permit media coverage. The support magistrate may be included in such family photographs and coverage, and be identified by name, but should not volunteer information about his/her quasi-judicial status or role in the court system (see 22 NYCRR 100.2[C]). He/she must take reasonable steps to ensure his/her quasi-judicial position is not exploited by the organization or others for fund-raising or promotional purposes (see Opinion 09-186).

         The support magistrate should contact the Unified Court System’s Ethics Commission, the agency with the ultimate authority to interpret 22 NYCRR Part 40, for guidance on whether and how to report the value of donations and services on his/her Annual Statement of Disclosure (see 22 NYCRR 40.1; 40.2; 100.4[I]; Opinion 09-186; contact 212-428-2899 or visit www.nycourts.gov/ip/ethics).

         A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment, nor convey or allow others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[B]-[C]). Here, if the support magistrate becomes aware that an individual appearing before him/her has donated time, money or services to a project benefitting the support magistrate’s child within the past six months, the support magistrate must make full disclosure. Because disclosure is mandated in lieu of outright disqualification, if any party appears without counsel, the magistrate must simply disqualify him/herself from the matter (cf. Opinion 17-08 [describing mandatory disclosure]). If all parties appear with counsel, the he/she may preside after full disclosure, provided he/she can be fair and impartial (cf. id.; People v Moreno, 70 NY2d 403, 405 [1987]). If the donation was modest and reasonable, he/she need not disclose or recuse after six months.²

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¹ By way of example, the support magistrate identifies such not-for-profit organizations as A Room to Heal and the Make-A-Wish Foundation; the former relies on volunteers and donations to undertake home modifications for children with serious medical conditions, and the latter offers similar assistance as well as trips and other life-enhancing experiences for those children.

² Should the support magistrate learn of an unusually generous gift from an individual who has recently appeared before him/her or is likely to do so in future, he/she may contact us for further guidance (cf. Opinion 12-107).