Opinion 19-55

May 2, 2019

Please Note: With respect to Point #2, the legislature subsequently enacted Judiciary Law § 9, which states: “Any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding shall provide the reason for such recusal in writing or on the record; provided, however, that no judge shall be required to provide a reason for such recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.” Resolution of a possible dissonance between the disclosures contemplated in Judiciary Law § 9 and the confidentiality contemplated in Judiciary Law § 90(10) and/or § 499(1), if applicable, involves legal questions we cannot address (see e.g. Opinion 21-45). 

Digest:         (1) A full-time judge may serve as officer or director of a bar foundation that provides financial aid to individual attorneys in personal and professional crisis, although the judge must not personally participate in fund-raising or permit judicial prestige to be used for fund-raising purposes.

(2) The judge may preside in matters involving attorneys receiving assistance from the foundation, where the judge’s contacts with them are relatively minimal and occur exclusively through a liaison who presents the case to the board. Disqualification is not mandatory unless (a) the attorney asks the judge to recuse him/herself or (b) the judge doubts his/her ability to be fair and impartial. The attorney must be advised that the judge will recuse on request, without explanation, if the attorney is uncomfortable with the judge presiding over a particular case as a result of the attorney’s participation in the foundation.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.3(E)(1); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 16-177; 13-09/13-52; 02-106; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge asks if he/she may serve on the board of a bar association’s not-for-profit foundation that assists attorneys in personal and professional crisis dealing with medical expenses, job losses, emotional difficulties, family crisis, and other difficulties. The services “are individualized and completely confidential.” The board “meet[s] monthly to discuss the progress of each of the lawyers being assisted and any new applicants.” The assisted attorneys do not appear directly before the board, but instead meet with a board member liaison who presents the case to the board for consideration. To support its work, the bar foundation accepts donations year-round and conducts an annual fund-raising campaign. If the judge may serve as an officer or director of the bar foundation, the judge further asks if he/she may preside in cases involving attorneys who receive assistance from the bar foundation.

         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’s extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge generally may serve as an officer, director, trustee or non-legal advisor of a non-profit charitable or civic organization, where the organization is not likely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]) or “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). A judge must not, however, personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]). A judge must disqualify him/herself in matters where the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]). But if disqualification is not mandated under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         The Rules “broadly permit judges to participate in efforts to improve the law, the legal system and the administration of justice, and the Committee believes that participation in such activity is to be encouraged” (Opinion 13-09/13-52 [citations omitted]). This judge’s proposed involvement as officer or director of the bar foundation is “clearly intended to help improve the legal system and the administration of justice by encouraging attorneys to seek help” when they need it (Opinion 16-177), whether with medical expenses, job losses, emotional difficulties, addictions or other emergency situations that may interfere with their ability to practice (cf. Opinion 16-177). That the bar foundation deals with a broader range of issues affecting attorneys than the lawyer assistance committee discussed in Opinion 16-177 does not render the judge’s participation improper. Moreover, although the bar foundation engages in fund-raising, it is clearly not an ad hoc entity formed for the sole purpose of soliciting funds (see Opinion 02-106). Accordingly, absent specific factors creating an appearance of impropriety, we can see no reason to prohibit a judge from serving on the board of this bar foundation. Of course, all the usual limitations on fund-raising and membership solicitation apply, and the judge must not permit judicial prestige to be used for fund-raising purposes.¹

         We also find Opinion 16-177 instructive as to the judge’s obligations in matters involving attorneys who receive assistance from the bar foundation. In Opinion 16-177, because the judge’s interactions with an attorney through the lawyer assistance committee were “relatively brief and take place in a group setting where the judge and other recovering attorneys share their own experiences with substance abuse” (Opinion 16-177) and involved “no ongoing counseling, mentoring or monitoring relationship” (id.), we concluded “the judge’s impartiality cannot ‘reasonably be questioned’ in all matters involving the attorney” (id., quoting 22 NYCRR 100.3[E][1]). Due to the highly sensitive and confidential nature of the discussions, however, we recognized that “an attorney could feel uncomfortable appearing before the judge shortly after a 12-step call involving the judge and might be uncertain about whether he/she can request recusal without exposing his/her struggles with substance abuse” (Opinion 16-177). To address this issue, we required the judge to “advise the attorney during the 12-step call that that he/she will recuse on request, without explanation, if the attorney is uncomfortable with the judge presiding over a particular case as a result of the 12-step call” (id.).

         As described, this judge will generally have no direct contact with attorneys seeking help. Rather, a liaison presents each attorney’s case to the board at monthly meetings to address the attorney’s financial or other needs. Where the judge, as an officer or board member, will have minimal (if any) contact with the attorney and will merely vote on whether to provide assistance to the attorney, we believe the judge’s impartiality ordinarily cannot “reasonably be questioned” in all matters involving the attorney (22 NYCRR 100.3[E][1]; Opinion 16-177).

         Here, as in Opinion 16-177, the judge may become privy to very sensitive personal information concerning an attorney’s addictions or other struggles that require outside intervention and assistance and will be required to keep this information “completely confidential.” We therefore likewise conclude this judge may ordinarily preside over matters involving attorneys receiving assistance from the foundation, where the contacts are relatively minimal and occur exclusively through the presentation of another board member who acts as a liaison in presenting the attorney’s case to the board. Disqualification is not mandatory unless (a) the attorney asks the judge to recuse him/herself and/or (b) the judge doubts his/her ability to be fair and impartial. The judge must advise the attorney through the liaison that he/she will recuse on request, without explanation, if the attorney is uncomfortable with the judge presiding over a particular case as a result of the attorney’s receipt of assistance from the bar foundation (see Opinion 16-177).

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¹ For example, while the judge must not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) or be “a speaker or the guest of honor” at the foundation’s fund-raising events (22 NYCRR 100.4[C][3][b][ii]), he/she may attend such events (id.) and his/her name may be included in the list of officers and directors on the foundation’s regular letterhead (see 22 NYCRR 100.4[C][3][b][iv]).