Opinion 97-98

September 11, 1997

Digest:         A judge and the judge's spouse may not, on behalf of their children, accept monetary gifts from a friend whom the judge previously appointed as a fiduciary.

Rules:          22 NYCRR 36.1(a); 100.2; 100.4(D)(5)(d); 100.4(D)(5)(h)

Opinion:

         A full-time judge inquires whether, on behalf of his/her children, the judge's family may keep two $1000 U.S. Savings Bonds presented to the judge's children by a close family friend on the occasion of their births. The judge relates that the bonds are in the name of the judge's spouse as guardian for the children.

         Section 100.4(D)(5)(d) of the Rules Governing Judicial Conduct provides that a judge and the judge's family may accept “a gift from a relative or friend, for a special occasion such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship.”

         The inquiring judge advises the Committee that he/she has known the donor of the gifts since 1971 and that they have socialized together since that time; that prior to becoming a judge, the two had a business relationship in that the donor handled insurance and real estate matters for the judge; and further, both were previously active in politics “where we worked together in an exceedingly close and regular basis.” After being elected to the bench, the judge appointed the friend as a receiver to sell property in 1995 and the services were concluded and the friend's fee of approximately $4,900 was fixed by order of the judge in 1996. The friend was not appointed from the list of fiduciaries maintained by the Unified Court System, but by reason of the friend's expertise and upon the consent of the parties, pursuant to section 36.1(a) of the Rules of the Chief Judge.

         It should be noted that one of the judge's children was born in 1992 and, according to the judge, due to an oversight on the friend's part, a gift was not given at that time. The second son was born in late 1996, and the gifts were presented to the judge and the judge's spouse sometime prior to August, 1997.

         Pursuant to section 100.2 of the Rules Governing Judicial Conduct, a judge shall avoid the appearance of impropriety in all his/her activities. While the sincerity and good intentions implicit in a gift from a friend of over 25 years would not, under different circumstances, be subject to misunderstanding, the timing, here, of the gift in relation to the appointment as fiduciary, especially as it pertains to the “nunc pro tunc” application to the elder son, raises, at a minimum, the specter of the appearance of impropriety. Further, the permissibility of acceptance of a gift as provided for in section 100.4(D)(5)(d) does not in this instance override the prohibition of subparagraph (h) of section 100.4(D)(5), which bars the acceptance of a gift from a donor “whose interests have come ... before the judge.” 22 NYCRR 100.4(D)(5)(h). Thus, it is the opinion of the Committee that the gifts not be accepted. If already accepted, the gifts should be returned.