Opinion 19-28

March 14, 2019

Digest:         Where an agency attorney initially accepted a court attorney position with the judge, but then declined the position without commencing employment, the judge may continue to preside in cases where the attorney appears, if the judge decides he/she can be fair and impartial. He/she need not disclose the unconsummated employment opportunity.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-46; 07-04.

Opinion:

         The inquiring judge sought to hire a new court attorney. Among other applicants, he/she interviewed an “agency attorney” who regularly appears before the judge. The judge extended an employment offer, and the agency attorney accepted it. However, due to personal reasons, the agency lawyer never resigned from the agency nor began employment with the judge. Instead, after taking a leave of absence from the agency, he/she told the judge he/she could not accept the offer. The judge now asks if he/she may preside in matters involving this attorney, and if he/she must “disclose the... employment opportunity on the record.”

         A judge must always avoid even an 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]). Thus, a judge must disqualify him/herself in any case where the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]), including in specific circumstances mandated by rule or statute (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).

         We have not previously considered a judge’s obligations where an attorney initially accepted the judge’s employment offer, but never went forward with the proposed employment. However, we find some guidance in Opinion 15-46, where a judge’s contract to purchase real property from a police officer terminated by its terms without a purchase. The judge asked about his/her obligations when the police officer appeared on search warrant applications. We concluded that, absent any other disqualifying factor, the judge may hear search warrant applications involving the prospective seller of the unconsummated realty purchase, provided the judge concludes he/she can be fair and impartial (see Opinion 15-46).

         Here, a similar conclusion is warranted. Although the agency attorney initially accepted the position, he/she later declined the offer for personal reasons, before commencing employment. The judge and his/her prospective employee thus never developed the relationship of “particular trust and confidence” typical of a judge and his/her law clerk (see e.g. Opinion 07-04). We believe the inquiring judge’s impartiality cannot “reasonably be questioned” based solely on the contemplated employment opportunity (22 NYCRR 100.3[E][1] [emphasis added]).

         Accordingly, absent any other disqualifying factor, this judge may preside over matters involving the agency attorney and need not disclose the unconsummated employment opportunity, provided the judge determines he/she can be fair and impartial.