Opinion 24-103

June 20, 2024

Digest:  A quasi-judicial official may not accept an offer to stay at the vacation home of an attorney who regularly appears before him/her.

Rules:   22 NYCRR 100.2; 100.3(A); 100.4(A)(1); 100.4(D)(1)(c); 100.4(D)(5); 100.4(D)(5)(c), (e), (h); 100.6(A); Opinions 11-125; 07-141; 95-99; 87-15(a)(b).

Opinion:

          The inquiring support magistrate and his/her spouse have known a particular attorney for two decades and consider the attorney a “close acquaintance.”  Before the inquirer’s quasi-judicial appointment, he/she had accepted an offer to use the attorney’s vacation home for the weekend without charge, and reciprocated with a thank-you card and restaurant gift certificates.  As the attorney recently renewed the offer, the support magistrate asks if it is ethically permissible to accept, given that the attorney will regularly appear before him/her.

          Quasi-judicial officials must “so far as practical and appropriate” use the Rules Governing Judicial Conduct “as guides to their [extra-judicial] conduct” (22 NYCRR 100.6[A]).  Accordingly, a quasi-judicial official must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Because judicial duties must “take precedence” (22 NYCRR 100.3[A]), a quasi-judicial official’s extra-judicial activities must not “cast reasonable doubt on [his/her] capacity to act impartially” (22 NYCRR 100.4[A][1]) and should exclude “frequent transactions or continuing business relationships” with lawyers likely to come before him/her (22 NYCRR 100.4[D][1][c]).  A judge or quasi-judicial official may not accept a gift, bequest, favor, or loan unless an exception applies (see 22 NYCRR 100.4[D][5]).  For example, he/she may accept “ordinary social hospitality” (22 NYCRR 100.4[D][5][c]).  A judge or quasi-judicial official may also accept a gift, bequest, favor or loan from “a relative or close personal friend whose appearance or interest in a case would in any event require disqualification” (22 NYCRR 100.4[D][5][e]) or a donor who “is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before” him/her (22 NYCRR 100.4[D][5][h]). 

          In construing the “ordinary social hospitality” exception, we have emphasized the word “ordinary” and have focused on discrete social functions such as a party or dinner.  For example, a judge may attend an ordinary holiday party or similar social function hosted by a lawyer, law firm, or legal agency (see Opinion 87-15[a][b]); a member/guest golf outing as an attorney’s guest (see Opinion 95-99); and a party for the public defender’s spouse and a religious function for a law guardian’s child (see Opinion 07-141).  By contrast, we advised that “ordinary social hospitality” does not encompass “a party that provides guests with a complete dinner at an expensive restaurant, a cruise, or like affair that is more expensive or lavish than an ordinary party” (Opinion 87-15[a][b]). 

          We have not previously construed “ordinary social hospitality” to encompass a weekend stay in an attorney’s vacation home, and we decline to do so here.  In our view, the use and value of the same exceeds ordinary social hospitality.  Moreover, as the attorney “has come or is likely to come” before the support magistrate, the catch-all exception does not apply (22 NYCRR 100.4[D][5][h). 

          Accordingly, we conclude that the inquiring support magistrate may not accept the use of a vacation residence of an attorney who regularly appears in front of him/her.

While the inquirer does not ask if he/she must disclose or disqualify in matters where this attorney appears, we note that both the current offer and any prior stays should be considered in determining the level of relationship and concomitant obligations under Opinion 11-125.