Opinion 21-04

                                                                                                                                    January 28, 2021


Digest:         A judge has no ethical obligation to vacate their decision in a criminal case, merely because the defendant was the judge’s student several decades ago and they remain friendly acquaintances.


Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 18-173; 15-147; 11-125; People v Moreno, 70 NY2d 403 (1987).


         A town or village justice recently handled a criminal case involving a second-degree relative of the justice court clerk. The judge completely insulated the court clerk from the matter and heard the matter through disposition. It appears there was nothing exceptional in the way the case was handled; the prosecution made an offer which was acceptable to the defendant, and the court approved it and imposed sentence as legally appropriate. Nonetheless, on reflection, the justice now asks if it is necessary to take steps to vacate the decision due to the judge’s longstanding friendly acquaintance with the defendant, who was the judge’s student over 40 years ago. It appears they have never socialized together and have little direct social contact. The judge has disclosed this connection to all counsel in the matter.

         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]). Therefore, a judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in matters when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

          In Opinion 11-125, we defined three broad categories of interpersonal relationships. In determining which category applies, we suggested “a judge should take into account such factors as the nature of his/her relationship with the attorney; the inter-relationships, if any, among and between their respective immediate and close family members; the frequency and context of their contacts; whether they or their respective family members have financial, political or other ties; and whether they or their respective family members share confidences” (id. [citations omitted]).

         We said that an acquaintance-level relationship exists where “interactions outside of court result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc.” (Opinion 11-125). We concluded that “the mere fact that a judge is acquainted with and cordial to an attorney who appears before the judge when they come into contact outside the court - even if such contacts are regular or periodic - without more, is not a reasonable basis to question the judge’s impartiality” (id. [citations omitted]). Therefore, where a judge concludes that the relationship is that of acquaintances, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         As noted in Opinion 18-173, we “have applied [the same analysis] to other social relationships,” including those between judge and litigant. Accordingly, a judge need not disclose or disqualify from a criminal matter merely due to an acquaintance-level relationship with the defendant, provided the judge concludes they can be fair and impartial (see Opinion 11-125).

         Here, the defendant was the judge’s student over 40 years ago. Although they have remained friendly, they do not socialize together and have little direct social contact. As described, the relationship appears to be that of acquaintances, which does not require disclosure or disqualification. Nor does the judge question their own impartiality in the matter or the legal correctness of the decision or sentence (cf. Opinion 15-147).

         Accordingly, we conclude the judge is not ethically required to vacate the decision or take other action with respect to this now-concluded matter.