Opinion 21-22(B)

March 11, 2021

Digest:         (1) Where a full-time judge solely owns certain rental properties through a solely owned limited liability company, the judge:

(a) may advertise those properties via social media or other lawful means, provided such advertisements do not mention the judge’s judicial status;

(b) need not prohibit current tenants from forwarding or sharing such advertisements;

(c) may, to the extent permitted by law, enter into a business arrangement providing a current tenant with a rent credit for referring new tenants, again assuming the judge’s judicial status will not be referenced;

(d) is disqualified, subject to remittal, from presiding over matters involving current tenants; and

(e) may not appoint or re-appoint current tenants to positions such as assigned counsel or attorney for the child.

(2) If the judge’s relationship with an attorney tenant results in frequent disqualifications, the judge must either terminate the landlord/tenant relationship or divest the investment.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(2); 100.3 (F); 100.4(D)(1)(a)-(c); 100.4(D)(2); 100.4(D)(4); Opinions 21-22(A); 20-138; 13-165; 12-107; 08-176; 97-55; 2021 Ann Rep of NY Commn on Jud Conduct, at 239.

Opinion:

         A full-time judge owns an LLC which owns and rents certain buildings to residential and commercial tenants. First, the judge asks if it is permissible to advertise the buildings on their personal Facebook page and, if so, whether they may permit the tenants to “share” such Facebook post(s) with others. Second, the judge asks if they may enter into an agreement with existing tenants which provides that, if the existing tenants refer a prospective tenant who signs a lease for a specified term, the existing tenant will receive a rent credit. Third, the judge asks about presiding in matters involving attorneys who are tenants of the subject properties. For example, the judge asks if it is permissible to preside in matters where those attorney tenants appear as counsel on behalf of a client. In addition, the judge asks if it is permissible to assign or re-assign such attorney tenants, including as an attorney for the child, in matters before the judge.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, for example, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). While judges may “hold and manage investments of the judge and members of the judge’s family, including real estate” (22 NYCRR 100.4[D][2]), they must not engage in financial and business dealings that (a) may reasonably be perceived to exploit their judicial position; (b) involve them with any business, organization or activity that ordinarily will come before them; or (c) involve them in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which they serve (see 22 NYCRR 100.4[D][1][a]-[c]). A judge must “keep informed” about his/her own economic interests and “make a reasonable effort to keep informed” about those of his/her spouse (22 NYCRR 100.3[E][2]) and must further “manage the judge’s investments and other financial interests to minimize the number of cases in which the judge is disqualified” (22 NYCRR 100.4[D][4]). In turn, judges must disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge or their spouse has an interest that might be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c], [d][iii]). Where a judge’s “investments [or] other financial interests ... might require frequent disqualification,” the judge must divest them “[a]s soon as the judge can do so without serious financial detriment” (22 NYCRR 100.4[D][4]).

         Generally, judges may use social media, but “should exercise an appropriate degree of discretion” in doing so (see Opinion 08-176). Indeed, a judge should recognize the public nature of anything they place on a social network page and tailor any postings accordingly. However, there is no ethical concern with a full-time judge advertising the judge’s solely owned real property through social media, provided such advertisement does not mention the judge’s judicial status (see 22 NYCRR 100.4[D][2]); cf. Opinions 13-165 [a part-time judge may participate in commercial activity either in person or through advertisements]; 12-107 [the Committee expects judges will omit their judicial status in business transactions]). In this regard, we note the judge should exercise caution to ensure their social media settings will not “automatically identify [them] by [their] judicial title” before placing such advertisements (2021 Ann Rep of NY Commn on Jud Conduct, at 239).

         The absence of an ethical concern regarding the social media advertisement would also extend to any “sharing” or redistribution of such advertisement. Likewise, on these facts, we find that the judge may enter into the proposed business arrangements with tenants regarding real property owned by the judge to the extent permitted by law, on the condition that the judge’s judicial status is not referenced or included in such transactions.

         The judge’s remaining questions focus on the propriety of presiding in matters involving the judge’s attorney tenants. We conclude that the judge’s impartiality might reasonably be questioned when an attorney appearing before them is currently a tenant in a building owned by the LLC that is owned by the judge (see 22 NYCRR 100.2[A]; Opinion 20-138 [“a judge is disqualified in any proceeding which involves a drug and alcohol evaluation and treatment center that accepts referrals from the court and is the lessee of a building the judge co-owns”], citing Opinion 97-55).

         Accordingly, the inquiring judge is disqualified, subject to remittal, in matters involving such tenant attorneys. Disqualification is required whether the attorney tenants are retained by a party or were previously appointed by a court as assigned counsel or as an attorney for a child. Remittal requires full disclosure on the record and the voluntary affirmative consent of the parties and their counsel; remittal is not available if the judge questions their own impartiality (see Opinion 21-22[A]). As explained in Opinion 21-22(A), remittal is available even when a party is appearing without counsel. Requirements of the remittal process are reiterated below in the “Note on Remittal.”

         Furthermore, the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) if the judge were to assign these attorney tenants to cases, including as an attorney for the child. Therefore, the judge is ethically prohibited from making such assignments.

         Finally, if the conflicts involving the judge’s attorney tenants result in frequent disqualifications, the judge must either terminate the landlord/tenant relationship or divest the investment (see 22 NYCRR 100.2; 100.4[D][4]; Opinion 20-138).

Note on Remittal

         As explained in Opinion 21-22(A) (citations, indentation and internal quotation marks omitted):

Where a judge has a disqualifying conflict in a matter, but has nonetheless searched their conscience and determined that they can be completely fair and impartial and are willing to preside, the Rules Governing Judicial Conduct provide a mechanism for remittal (waiver) of disqualification. In order to protect the parties and to promote public confidence in the judiciary, the remittal process is strictly construed. ... [I]t is not the parties’ burden to request the judge’s disqualification. Rather, it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern. Moreover, where remittal is available, it is a multi-step process which likewise puts the burden on the judge (1) to make full disclosure of the basis for disqualification on the record and (2) not to preside unless the parties and their counsel freely and affirmatively consent to waive the conflict as specified in Section 100.3(F) and our prior opinions. Again, mere failure to object is insufficient.

Thus, the starting point, when we say a judge is disqualified subject to remittal, is that the judge is disqualified in the matter and cannot take further action, other than disclosure of the basis for disqualification, absent the voluntary affirmative consent of the parties and their counsel. ... As far as the judge is concerned, he/she is disqualified. Period. It is now up to the parties and their counsel to decide whether to remit that disqualification.

Remittal, where permitted, is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

... The decision to remit must be made freely, willingly, and without coercion, in full knowledge of the relevant facts.