Opinion 21-131
September 9, 2021
Digest: (1) A judicial candidate may not enter into a contract with a law firm in which the candidate agrees to recuse in certain matters if elected. (2) The inquirer may share this or other ethics opinions with counsel.
Rules: NY Const, art VI § 20(b); Judiciary Law §§ 14; 212(2)(l); 22 NYCRR 100.0(A); 100.0(S); 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i)-(ii); 100.3(F); 100.5(A)(4)(a); 100.6(A); 101.1; 101.6; 101.7; Opinions 21-74; 21-22(A); 20-166; 19-164; 19-133; 19-80; 16-55; 15-126; People v Moreno, 70 NY2d 403 (1987); People ex rel. Smulczeski v Smulczeski, 18 AD3d 785 (2d Dept 2005).
Opinion:
The inquiring judicial candidate1 was formerly a partner in a law firm and has been negotiating a settlement with the candidate’s former partners in connection with the law firm’s dissolution. Meanwhile those attorneys have formed a new partnership without the candidate (the “new firm”). A recent draft of the proposed settlement agreement contained the following language:
“The parties further acknowledge that [the inquirer] is presently a candidate for the position of [judge]. In the event [the inquirer] is elected to such position, [the inquirer] hereby irrevocably agrees to recuse ... from presiding over any matter in which [the new firm] or any present or future attorney in [the new firm], or any successor firm to [the new firm], appears as counsel to any party.”
Upon seeing this provision, the judicial candidate decided to communicate with their former law partners solely through counsel going forward. Further, the candidate instructed counsel not to discuss or negotiate the issue of recusal, and to advise the candidate’s former partners that recusal cannot be included in any agreement. The candidate asks (1) if these steps are appropriate and sufficient under the circumstances and (2) if it is permissible to share the present advisory opinion with counsel.
Under the Rules Governing Judicial Conduct, “a non-judge who is a candidate for public election to judicial office” must “act in a manner consistent with the impartiality, integrity and independence of the judiciary” (22 NYCRR 100.5[A][4][a]; 100.6[A]; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]). Here, the inquiring judicial candidate is striving to ensure that their current conduct comports with the principles governing judicial conduct in order to avoid difficulties later on if the candidate becomes a judge.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), and must respect and comply with the law (see 22 NYCRR 100.2[A]) and be faithful to it (see 22 NYCRR 100.3[B][1]). Judges must disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by specific rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). For example, a judge is permanently disqualified where the judge knows that “the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; 100.3[F] [identifying this and four other unremittable grounds for disqualification]). In many other instances, however, including where the judge knows that “a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter” (22 NYCRR 100.3[E][1][b]), the judge’s disqualification may be subject to remittal (see generally 22 NYCRR 100.3[F]; Opinion 21-22[A]). Moreover, where disqualification is not mandated by objective standards, a trial judge is the sole arbiter of whether recusal is warranted. It is a discretionary decision “within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]; People ex rel. Smulczeski v Smulczeski, 18 AD3d 785, 786 [2d Dept 2005]).
Under the Rules and our prior opinions, a judge is not necessarily disqualified for all time on all matters involving the judge’s former partners and associates, let alone those attorneys’ future colleagues and/or every conceivable successor law firm (see e.g. Opinions 15-126 [a full-time judge is disqualified, subject to remittal, from matters involving their former partners and associates “for two years after the relationship completely ends”]; 19-164 [a new full-time judge whose former law firm colleague now serves as a part-time non-supervisory conflict defender may preside in matters in which other attorneys from the conflict defender’s office appear]).2 Significantly, even where disqualification is required based on a judge’s former professional associations, it may be subject to remittal after full disclosure on the record, provided the judge can be fair and impartial (see e.g. Opinion 15-126; 22 NYCRR 100.3[F]).
The proposed contractual requirement at issue thus appears to be more stringent than the Rules in that it purports to mandate recusal where the Rules and our opinions would confine the decision solely to the judge’s personal conscience. It could also be seen as purporting to prohibit the judge from offering the parties and their counsel an opportunity to consider remittal of disqualification where permitted by the Rules and our opinions. In Opinion 16-55, we considered an analogous question: whether a town justice may agree to be bound by the town ethics code if more stringent than the Rules. As we explained (id. [footnote and citations omitted]):
The state constitution provides that “judges of district, town, village or city courts outside the city of New York” shall be “subject to such rules of conduct not inconsistent with laws as may be promulgated by the chief administrator of the courts with the approval of the court of appeals.”
That is, the Rules Governing Judicial Conduct have been promulgated pursuant to authority constitutionally vested in the very highest levels of the judiciary itself. This is a critical fact, in the Committee’s view, because the Rules necessarily reflect significant policy choices based on extensive institutional experience with the administration of justice and all aspects of court operations. As a result of these policy choices, the Rules may simultaneously be “more stringent” in certain areas, and “more lenient” in other areas, than lawyers or the general public might otherwise expect.
The Committee therefore believes a town judge’s voluntary submission to a town ethics code, which may arguably be “more stringent” in some ways than the Rules Governing Judicial Conduct, would be ethically inappropriate as it would impinge on the independence of the judiciary.
As similar principles apply to the position the inquiring judicial candidate seeks,3 we believe a judge’s voluntary agreement to be bound by an arguably more stringent contractual term would likewise be ethically inappropriate as it would impinge on the independence of the judiciary (see e.g. Opinions 16-55 [absent a legal requirement, a town justice must not sign a statement (a) acknowledging an obligation to comply with a town ethics code where it is more stringent than the Rules, or (b) acknowledging that willful violation of the town ethics code may be a basis for suspension, dismissal, or removal]; 20-166 [impermissible for a town justice to voluntarily agree to comply with the town’s Information Resources and Technology Acceptable Use Policy, which “purports to impose new duties” on the judge and to subject the judge to “corrective action or discipline at the local level”]; 19-80 [impermissible for a village justice to voluntarily agree to comply with the village’s sexual harassment policy, where the policy “purports to subject all village officials and employees to corrective action or discipline at the local level and to impose new legal duties on them”]; 21-74 [impermissible for a town justice to voluntarily pledge to be bound by the town’s sexual harassment policy, which provides for local discipline and conflicts with the Unified Court System’s sexual harassment policy]).
Further, agreeing to the restriction in question might create the impression that a judge’s former law partners are “in a special position to influence” the court (see 22 NYCRR 100.2[C]).
We therefore conclude that the inquiring judicial candidate must not enter into any agreement that contains the clause at issue. Whether the steps the candidate has taken thus far are appropriate, or whether there are other actions that should be taken, are primarily legal questions beyond this Committee’s purview (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]).
With respect to the judicial candidate’s final question concerning the propriety of sharing this advisory opinion with counsel, we find no prohibition on doing so (see generally Opinion 19-133; 22 NYCRR 101.6; 101.7).
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1 A judicial candidate is a person seeking judicial office by election (22 NYCRR 100.0[A]).
2 The exact scope of this candidate’s potential future disqualification obligations is not before us at this time, and we do not comment on them.
3 The state constitution provides that a “justice of the supreme court, ... judge of a county court, judge of the surrogate’s court, [or] judge of the family court” shall be “subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals” (NY Const, art VI § 20[b]).