Opinion 23-39

March 23, 2023

Digest:         A quasi-judicial official whose significant other is a businessperson may take part in gifts and benefits provided by various businesses as their significant other’s guest, where (1) the significant other and the business donors do not have, and are unlikely to have in the future, interests that are likely to come before the referee and (2) the receipt of such gifts would not create the impression that such businesses are in a special position to influence the referee.

Rules:          22 NYCRR 100.0(I)-(J); 100.2; 100.2(A); 100.3(E); 100.4(D)(5); 100.4(D)(5)(b), (e), (h); 100.4(I); 100.6(A); 101.3(b); Part 40; Opinions 21-123; 21-150; 21-35; 15-12; 13-151; 11-50.

Opinion:

         The inquiring full-time court attorney-referee’s life partner or “significant other” is a businessperson who owns several specialized retail stores.¹ The significant other’s business interacts closely with other businesses (such as vendors, distributors, and manufacturers), which in turn provide free gifts/perks for the significant other and a guest, such as meals, tickets for sporting events, travel expenses, resort stays, and credits for legal gambling. The donor businesses have not had, and are unlikely to have, any interests likely to come before the referee. The referee asks if it is permissible to share in these gifts/perks as a guest of their significant other.

         Court attorney-referees and others “who perform judicial functions within the judicial system” must “comply with” the Rules Governing Judicial Conduct “in the performance of their judicial functions” and must otherwise “so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]; cf. 22 NYCRR 101.3[b] [permitting us to “respond to questions concerning judicial ethics posed by persons who exercise quasi-judicial duties in the Unified Court System”]).

         Thus, a quasi-judicial official must 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]). Section 100.4(D)(5) generally prohibits a quasi-judicial official from accepting a “a gift, bequest, favor or loan” unless an exception applies (see Opinions 21-123; 13-151; 11-50). The exceptions include:

•    “a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties” (22 NYCRR 100.4[D][5][b]); and

•    “any other gift, bequest, favor or loan, only if the donor is not a party or other person who has come or is likely to come or whose interests have come before the judge” (22 NYCRR 100.4[D][5][h]).²     

        While the exception set forth in Section 100.4(D)(5)(b) seems at first very close to the situation here (see e.g. Opinion 21-35), we note that the significant other is not the referee’s “spouse” and is not “residing in the judge’s household” (see generally 22 NYCRR 100.0[J] [defining the term “Member of the judge’s family residing in the judge’s household”]). We thus turn to the “catch-all exception” of Section 100.4(D)(5)(h), which applies here because the donors and their interests have not come and are not likely to come before the referee (see e.g. Opinions 21-150 [law firm offering free legal representation]; 15-12 [sports team offering free game tickets and parking vouchers]).³ On the facts presented, receipt of the described gifts would not create the impression that the businesses are in a special position to influence the referee. Accordingly, we conclude the referee may accept the gifts (see 22 NYCRR 100.4[D][5][h]).

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¹ As relevant to the analysis, the couple treat each other as family but do not live together (see 22 NYCRR 100.0[I]-[J]). We follow the inquirer’s lead in using the term “significant other.”

² Section 100.4(D)(5)(h) previously required that gifts accepted under the catch-all exception must be reported to the court clerk if their value exceeded $150 (see e.g. Opinion 21-150). Although this proviso has been deleted, the referee should comply with any Part 40 reporting requirements, if applicable (see 22 NYCRR 100.4[I]). Questions about Part 40 should be directed to the UCS Ethics Commission (https://ww2.nycourts.gov/IP/ethics/index.shtml).

³ To the extent that the significant other could be seen as an additional intermediate donor, we note the referee may accept gifts from “a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under section 100.3(E)” (22 NYCRR 100.5[D][5][e]).