Opinion 22-66
May 5, 2022
Digest: When appearing before a full-time judge on behalf of a client, a part-time lawyer judge should not make an unnecessary, voluntary disclosure that they once presided in a criminal case involving the full-time judge’s administrative secretary.
Rules: 22 NYCRR 100.2(A); 100.2(C); Opinions 22-16; 20-09; 20-08; 19-72; 08-95; 08-80; 07-18; 06-145.
Opinion:
The inquiring part-time attorney judge maintains a private law practice. In the course of appearing before a full-time judge on behalf of a client, the inquirer has become aware that the full-time judge’s administrative secretary1 is someone the inquirer had sentenced to probation a few years earlier in a high-profile, controversial case that was resolved by a plea agreement. The inquirer does not know if the presiding full-time judge is aware of this connection, and thus asks if it is ethically permissible to disclose it and ask the other judge to recuse.2
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]). Among other limitations, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).
Disclosure of a judge’s judicial status in litigation should not be made “unless it is relevant, related, or necessary to the proceeding” (Opinion 07-18). Thus, where a judge or quasi-judicial official appears as a party before another judge, we have said that an unnecessary, voluntary announcement of their judicial or quasi-judicial status, even if well intentioned, may be perceived as an inappropriate invocation of such status to further their private interests as a litigant (see Opinion 07-18; 22 NYCRR 100.2[C]). We have advised that a judge who is appearing as a litigant represented by counsel should instead instruct their attorney to notify opposing counsel and allow the attorneys to decide jointly on the best course of action to take, given the circumstances of the particular case (see Opinions 20-08; 08-95; 06-145).
We reached a somewhat different conclusion in Opinion 08-80, where a part-time lawyer/judge3 was acting as an advocate in a jury trial. The lawyer/judge was concerned that their client’s interests might be affected if prospective jurors harbored ill will against the lawyer/judge based on a prior court appearance before the lawyer/judge. Although we said the lawyer/judge should not voluntarily reveal their judicial status to prospective jurors during voir dire, we said they may “notify the trial judge and opposing counsel, on the record,” of their judicial status (id.). While we recognized that “a prospective juror’s past experience with the lawyer/judge in his/her judicial capacity ... has no relevance to a case in which the lawyer/judge is representing a client,” we thought disclosure should be made outside the prospective jurors’ presence so that (id.):
The trial judge then can determine, in the context of the particular case, the best way to address the issue, taking into account both the lawyer/judge’s client’s interests and the Rules Governing Judicial Conduct.
Significantly, Opinion 08-80 involved potential conflicts on the part of the lay jurors who would be serving as finders of fact in the matter involving the inquiring judge’s client. Here, by contrast, the potential conflict involves the administrative secretary of the presiding full-time judge. The distinction is at least three-fold. First, we have recognized that a judge’s “specialized learning, experience and judicial discipline” renders them “uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite [their] awareness of facts that cannot properly be relied upon in making the decision” (Opinion 20-09 [citations omitted]). The same cannot be said of lay jurors. Second, we note that a judge’s administrative secretary ordinarily plays no role in performing legal research or helping the judge analyze legal or factual issues in the case. Thus it is unlikely that the full-time judge here could be affected – even unconsciously - by any bias their secretary may harbor toward the inquiring part-time attorney judge. Third, the part-time attorney judge in Opinion 08-80 could initially raise the issue of a potential conflict outside the presence of the prospective jurors who would eventually serve as finders of fact. While not determinative, we note this to some extent may have helped simplify the ethical analysis because there was a completely neutral third party (i.e. the judge presiding in the matter) who could make a legal determination, informed by advocacy from both sides, before taking further case-appropriate steps that might or might not ultimately reveal the part-time attorney judge’s judicial status to some or all of the prospective jurors.
Here, we conclude that there is a substantial risk that the inquiring judge would be seen as lending the prestige of judicial office to advance their client’s interests if they were to make an unnecessary, voluntary disclosure that they once presided in a criminal case involving the full-time judge’s administrative secretary. Accordingly, they should not do so.
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1 We use the term “administrative secretary” here to stress that this is a clerical, administrative or secretarial position, rather than a court attorney or law clerk.
2 Where a judge’s staff member has a conflict, “it is ordinarily sufficient to insulate the staff member and disclose the insulation” (Opinion 19-72). However, not every putative conflict involving a staff member requires insulation (compare id. [insulation not required] with Opinion 22-16 [insulation required]). We cannot comment on the full-time judge’s ethical obligations here (if any), as it involves a fact-specific determination involving conduct of an individual other than the inquiring judge.
3 In Opinion 08-80, we referred to the inquiring part-time attorney judge as a “lawyer/judge.”