Opinion 19-148(B) Amended
December 12, 2019
Digest: (1) A judge may collect fees for legal work done before taking full-time judicial office, only if the fee arrangement is otherwise proper.
(2) A judge need not prohibit his/her spouse from serving as a committee member of a political party.
(3) A judge may, as an extra-judicial activity, teach youth court volunteers on both sides about restorative justice issues and court procedures.
(4) In matters involving the judge’s election opponent or the opponent’s law firm, clients, relatives, and supporters, disqualification is not required unless the judge, in his/her sole discretion after carefully considering all relevant factors, concludes his/her impartiality might reasonably be questioned or doubts his/her ability to be fair and impartial.
(5) Where a lawyer not only supported the judge’s election opponent but also threatened and complained about the judge, disqualification is not required unless the judge, in his/her sole discretion, after carefully considering all relevant factors, concludes his/her impartiality might be reasonably questioned or doubts his/her ability to be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(B); 100.4(G); 100.5(A)(1); 22 NYCRR 1200, Rules 1.5, 7.2; Opinions 19-78; 19-35; 18-49; 15-62; 15-45; 12-44; 12-38; 12-04; 10-139; 05-130(A); 03-77; 94-60; 93-102; 93-44; 91-146; 90-136; 89-66; People v Moreno, 70 NY2d 403 (1987).
The inquirer previously served as a part-time judge, but now is a full-time judge. We summarize and address his/her questions individually below, reorganized to start with the simpler ones, and introducing key rules by topic.
Preliminarily, we note a judge must always 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]).
1. May the judge collect contingency/referral fees after assuming full-time judicial office for legal services performed before assuming office?
A full-time judge must not practice law, although he/she “may act pro se” and may provide uncompensated behind-the-scenes legal advice to family members (22 NYCRR 100.4[G]).
In winding down his/her prior law practice, the judge has “legacy personal injury cases that have fee arrangements that upon settling the case, I would receive a referral fee.” The judge asks if he/she may collect such fees if and when they become payable.
A newly-elected judge may collect a percentage of a contingency fee awarded to the judge’s former law partners for work performed prior to assuming office, provided the fee arrangement is otherwise proper (see Opinion 93-44 [“judge may receive a fair and reasonable percentage of the fees fairly allocable to services rendered before the judge ascended to the bench”]). Likewise, a full-time judge “may collect fees owed to him/her for legal services he/she performed prior to assuming judicial office even if such fees are not payable for one or more years” (Opinion 10-139 [full-time judge]; see also Opinion 05-130[A] [permissible activities “include collecting fees and contingency fees to the extent they were earned before” the judge assumed the bench]; 22 NYCRR pt 1200, Rules 7.2 [payment for referrals], 1.5 [fees and division of fees]).
Here, too, the judge may collect legal fees for work performed before he/she assumed full-time judicial office, even if the fees are contingent and not payable for some years, provided the fee arrangement is otherwise proper.
2. Must the judge prohibit his/her spouse from serving as a committee member of a political party?
A judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A]).
The judge knows the Rules Governing Judicial Conduct do not preclude the spouse of a part-time judge from serving on a political party committee (see Opinion 94-60), but asks if the same principle applies now he/she is a full-time judge.
The Rules do not restrict the bona fide independent political activity of a judge’s spouse (see Opinion 15-62). Thus, neither a full-time nor a part-time judge need prohibit his/her spouse from serving as a political party committee member (see Opinion 94-60).
3. May the judge train youth court volunteers?
A judge generally may speak, write, and participate in extra-judicial activities, subject to limitations (see 22 NYCRR 100.4[B]). For example, a judge must not make any public comment on a pending or impending proceeding in the United States or its territories (see 22 NYCRR 100.3[B]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B]). A judge’s extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A]-).
The judge asks if he/she may, as a full-time judge, participate in training youth court volunteers “as to prosecution and defense.” The youth court is essentially a diversion program for certain juvenile offenders charged with low-level offenses; no referrals would come from the judge’s court. The training would include discussion and presentation on restorative justice principles and court procedures. As clarified, the judge will be teaching all sides (i.e. both youth who volunteer as defenders and youth who volunteer as prosecutors).
We believe this educational activity is permissible, as it does not cast reasonable doubt on the judge’s capacity to act impartially as a judge or otherwise create an appearance of impropriety (see 22 NYCRR 100.4[A]-; 100.4[B]; Opinions 12- 04; 93-102; 89-66).1
The remaining questions involve possible disqualification relating to the judge’s recent election.
A judge must disqualify him/herself when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or law (see generally id.; Judiciary Law § 14). A judge must not preside If he/she doubts an ability to be fair and impartial in any case.
4. May the judge preside in matters involving his/her recent election opponent and the opponent’s law firm, clients, relatives, and supporters?
The judge’s recent election was vigorously contested. The judge thus asks if he/she may sit in cases involving his/her recent election opponent, the opponent’s law firm or clients, and the opponent’s law partner or associate who is a first-degree relative and deeply involved in the campaign.
The Rules do not automatically require disqualification merely because an attorney was the judge’s recent election opponent (see Opinions 91-146; 90-136), even if the candidates challenged the sufficiency of each other’s nominating petitions (see Opinion 19-78). That is, provided the judge believes he/she can be impartial, disqualification is not required unless, on the particular facts, the judge’s impartiality “might reasonably be questioned” (Opinion 90-136; 22 NYCRR 100.3[E]). In deciding if his/her impartiality may fairly be questioned, he/she should consider the campaign’s length, quality, and bitterness. (Opinion 90-136). The final decision, however, must be left to the judge’s sound discretion. (see Opinions 19-78; 91-146; 90-136; People v Moreno, 70 NY2d 403 ).
Here, too, accordingly, the judge may preside in matters where his/her election opponent personally appears as an attorney, provided he/she concludes he/she can be fair and impartial after carefully considering whether, on the specific facts, the judge’s impartiality “might reasonably be questioned,” considering the time elapsed, the campaign’s length, quality, and its bitterness. (Opinion 90-136). Again, this decision is left to the sole discretion of the judge after careful consideration of all relevant factors.
As for the former election opponent’s supporters, including one who is both a family member and a law partner, the same standard generally applies (see Opinions 12-38; 03-77). Thus, we believe disqualification is not required unless the judge, in his/her sole discretion, concludes his/her impartiality might reasonably be questioned or doubts his/her ability to be fair and impartial (see id.; People v Moreno, 70 NY2d 403 ).
Finally, the mere fact that someone is doing business with the judge’s election opponent, without more, does not raise any reasonable questions about the judge’s impartiality. Thus, absent unusual factors, we believe the judge’s impartiality cannot “reasonably be questioned” in a matter involving the judge’s election opponent’s clients, partners or associates (22 NYCRR 100.3[E] [emphasis added]). Accordingly, the judge may preside if he/she can be fair and impartial.
5. May the judge preside in matters involving an attorney who not only supported the judge’s election opponent, but also had an acrimonious relationship as opposing counsel while the inquirer was a practicing attorney?
The judge specifically singles out one particular attorney for concern who supported his/her election opponent. This attorney sought to have the inquirer removed or disqualified as an attorney on multiple occasions and threatened to file disciplinary complaints against him/her. Further, the judge believes the attorney affirmatively requested all his/her cases be assigned to a different judge. The judge sees their relationship as “acrimonious” and believes this is “due in part” to an earlier period when the attorney and the judge were both being considered for judicial office, but asks: “Is the above grounds for disqualification if I believe I can be impartial. Should I as judge raise any of the above unilaterally should this attorney appear in court. May or should I direct that any case of this attorney be directed to the other judge even if I believe I can be impartial. If the attorney makes the disqualification application, should the application be in writing?”
An attorney’s threats and complaints, without more, do not require a judge to disqualify him/herself, provided the judge believes he/she can be impartial (see e.g. Opinion 19-35). Again, as with other individuals who supported the judge’s election opponent, the key question is whether the judge can be fair and impartial (see Opinions 12-38; 03-77). This judge is in the best circumstance to assess the level of acrimony involved to decide if disqualification is warranted (cf. Opinion 15-45 [judge must assess his/her current relationship with a lawyer who was formerly a close personal friend, who is “no longer on speaking terms,” in order to decide if disclosure or disqualification is required in cases where the former friend is personally involved]).
Thus, we believe disqualification is not required unless the judge, in his/her sole discretion, concludes his/her impartiality might reasonably be questioned or doubts his/her ability to be fair and impartial, after considering all relevant facts, including his/her own personal experiences with the attorney (see People v Moreno, 70 NY2d 403 ; Opinions 19-35; 15-45; 12-38; 03-77).
Applying these principles to the judge’s more specific questions, if he/she concludes his/her impartiality might reasonably be questioned or doubts his/her ability to be fair and impartial, the judge must recuse him/herself, and need not wait for a recusal motion from either side. Nor will such recusal be subject to remittal. Conversely, if the judge sees he/she can be utterly fair and impartial and that his/her impartiality cannot reasonably be questioned on these facts, the judge is not ethically bound to recuse him/herself. In that case, if either side asks to disqualify the judge, his/her good-faith resolution of the legal issues is per se ethical, even if the decision is reversed on appeal (see Opinion 18-49).
1 Opinion 12-44 is distinguishable because, while the inquiring judge may be teaching trial advocacy skills, he/she is doing so for all youth court volunteers, rather than for one side.