September 12, 2013
Digest: A full-time judge may accompany his/her close friends to a small claims proceeding in which the friends appear as parties, provided the judge sits in the audience, does not act as an attorney in the matter, does not have any ex parte contact with the judge presiding in the matter, and does not refer to or invoke his/her judicial office or otherwise lend the prestige of judicial office for the benefit of his/her friends. Under the circumstances presented, where the parties are unusually close friends whom the judge has known and treated as family for many decades, the judge may also provide them with uncompensated legal advice outside the courtroom.
Rules: 22 NYCRR 100.0(I); 100.2; 100.2(A); 100.2(c); 100.3(B)(6); 100.4(G); Opinions 12-143; 10-197; 99-24 (Vol. XVII).
A full-time judge inquires if it is ethically permissible to accompany certain close family friends to a small claims proceeding which will not be held in the county where the judge presides. The judge asks if he/she may act as their attorney, or at least confer with them, outside the courtroom, if matters arise that they do not understand. The judge explains that these individuals are like a second family to the judge; they have known each other for more than 50 years and have, in effect, treated each other’s homes as an adjunct or extension of their own.
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, among other limitations, a judge must not engage in impermissible ex parte communications (see 22 NYCRR 100.3[B]), and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A full-time judge also must not practice law, except that he/she “may act pro se and may, without compen-sation, give legal advice to a member of the judge’s family” (22 NYCRR 100.4[G]). The phrase “member of the judge’s family” means “a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship” (22 NYCRR 100.0[I]).
The Committee has previously advised that an individual subject to the Rules Governing Judicial Conduct may attend criminal proceedings involving a 4th degree relative by blood or marriage, including a step-relative, in any county where such proceedings are pending (see Opinion 12-143 [modifying prior opinions]); and that a judge may accompany his/her child to a small claims proceeding in which his/her child is a party, and may “sit in the audience and observe the proceeding as a member of the audience” (Opinion 99-24 [Vol. XVII]). The Committee has emphasized that, in attending such proceedings, the judge must not (1) act as an attorney in the matter; (2) have any ex parte contact with the presiding judge; or (3) invoke his/her judicial office or otherwise lend the prestige of judicial office for his/her relative’s benefit (see Opinion 12-143). The Committee has also advised that a judge may accompany a friend to court appearances relating to the friend’s divorce, even in the same county where the judge presides, but should not draw attention to his/her presence or judicial status (see Opinion 10-197). In each of these instances, the Committee concluded that the judge’s mere presence in court as an audience member, to observe proceedings in which a friend or relative is a party, would not give rise to an appearance of impropriety, and would not impermissibly lend the prestige of judicial office to advance the private interests of others (see generally Opinions 12-143; 10-197; 99-24 [Vol. XVII]).
Here, too, the inquiring judge may attend his/her friends’ small claims proceeding, provided the judge does not act as an attorney in the matter, does not have any ex parte contact with the presiding judge and does not refer to or invoke his/her judicial office or otherwise lend the prestige of judicial office to benefit his/her friends (see Opinion 12-143; 22 NYCRR 100.2[C]; 100.3[B]; 100.4[G]). The judge must sit in the audience, rather than at counsel table or any other area reserved for parties or their counsel (see Opinions 12-143; 10-197; 99-24 [Vol. XVII]).
Ordinarily, a full-time judge may only give legal advice to the judge’s family members(see 22 NYCRR 100.4[G]). Although the friends are not the inquiring judge’s relatives by blood or marriage, they are nonetheless unusually close personal friends who have been “treated by [the] judge as ... member[s] of the judge’s family” (22 NYCRR 100.0[I]) for more than 50 years, and the judge suggests that he/she considers their household essentially an extension of his/her own). Under these specific circumstances, therefore, the Committee concludes that the inquiring judge may provide uncompensated legal advice to these close family friends, although only outside the courtroom, to avoid creating an appearance that he/she is acting as an attorney in the matter (see 22 NYCRR 100.0[I]; 100.4[G]).