Opinion 88-138

December 8, 1988

Topic:          Propriety of a judge requesting attorneys who represented the judge’s son in a medical malpractice action to waive certain fees.

Digest:         It is inappropriate for a judge to request an attorney to waive his fee for legal services rendered to the judge.

Rules:          22 NYCRR §§100.1; 100.5 (C)

Opinion: 

         The question presented to the Committee is whether a judge may properly request attorneys who represented the judge in a conservatorship proceeding in connection with the judge's son's estate, to waive their legal fees.

         The judge is co-conservator of his incompetent son's estate. The order appointing the judge as co-conservator directed the judge to pay his attorneys $2,000 for their services. The judge requested that his attorneys waive the $2,000 fee in the conservatorship proceeding as they would receive a fee from his son's annuity in a medical malpractice action. The attorneys declined to do so stating that it would be unethical and further that the judge was using his office to seek a private benefit for his son and himself. The judge responds that he is simply bargaining as anyone could under the circumstances.

         Section 100.1 of the Rules of the chief Administrator requires a judge to observe “high standards of conduct so that the integrity and independence of the judiciary may be preserved.”

         Section 100.2(c) provides in part that: “No judge shall lend the prestige of his or her office to advance the private interests of others.”

         Section 100.5(c)(1) entitled “Financial activities.” provides:

A judge shall refrain from financial and business dealings that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he or she serves.

         Clearly, a judge may discuss fees with attorneys representing him in a personal matter as could anyone else in the same situation. However, the judge may not use the prestige of his judicial position to gain an advantage in these negotiations. This consideration is particularly in point as the judge's lawyers have raised this question.

         Here the relationship of the judge with his personal attorneys may appear improper. Although the inquiry does not indicate whether the attorneys practice in the judge's court, if they did, the attorneys could believe that they are in the uncomfortable position of having refused a personal financial request of the judge. Waiver of the $2,000 fee is clearly a private benefit to the judge and his son's estate and could present the appearance of being influenced by the judge's office. Under these circumstances, it is inappropriate for the judge to further request the attorneys to waive their fee.