October 24, 2013
Digest: A judge may attend and be honored at a reception organized by a bar association and underwritten by one or more commercial sponsors, including a law firm that will host the reception at its offices and provide all refreshments, where the event is publicized and open generally to members of the bench and bar, unless the host law firm is actively engaged in litigation in the judge’s court.
Rules: 22 NYCRR 100.2, 100.2(A); 100.2(C); 100.4(C)(3)(b)(ii); 100.4(D)(5)(a); Opinions 12-86; 11-125; 08-106; 09-92; 04-15; 87-15(c) (Vol. I).
An officer of a judges’ association asks whether it is permissible for judges to be honored at a reception that is organized by a bar association but will be underwritten by commercial sponsors such as “law firms, individual lawyers and businesses which market services and products to and for lawyers.” The inquiring judge states that one of the law firm sponsors may host the event at its own offices and provide all refreshments, and the sponsors’ underwriting will be acknowledged in pre-event marketing and at the event. The names of the individual judges will not appear on the invitation.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Among other restrictions, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).
With respect to the present inquiry, the Rules Governing Judicial Conduct provide that a judge may be the guest of honor at a bar association function, even if it is a fund-raising event (see 22 NYCRR 100.4[C][b][ii]). The gift rules expressly permit a judge to accept an invitation to attend a bar-related function for free (see 22 NYCRR 100.4[D][a]), and the Committee has further advised that a judge may attend a bar association function as the guest of an attorney or law firm (see Opinion 87-15[c] [Vol. I]; see also 22 NYCRR 100.4[D][a]). Moreover, the Committee has advised that a judge may attend such programs even if sponsored or underwritten by commercial entities (see Opinions 12-86; 08-106). Therefore, the Committee can discern no ethical impropriety for the judges who will be honored at the subject bar association event if the bar association acknowledges its commercial sponsors in routine marketing materials and at the event (see e.g. Opinion 04-15).1
The only novel question in the present inquiry is whether a judge is prohibited from attending a bar association event held at the offices of a sponsoring law firm. The Committee concludes that a judge is not prohibited from attending such an event for this reason. The Committee has previously advised that, although a judge may not present an in-house CLE program on internet research exclusively for lawyers and paralegals employed by a private law firm, the judge may present such a program if it is co-sponsored by the law firm and a bar association and is open to all members of the local bar (see Opinion 09-92).2 Under the circumstances presented in the current inquiry, it is the openness of the event, rather than the event’s location on the premises of a private law firm, that is determinative. That is, a bar association event which is publicized and open generally to the bench and bar does not become an impermissibly exclusive event merely because it is held on the premises of a private law firm.
However, if the event will be held at a sponsoring law firm’s offices while that law firm is actively engaged in litigation before the judge on its own, or a client’s, behalf, the judge should carefully consider whether, given all the circumstances presented, there might be an appearance of impropriety if the judge were to attend (see 22 NYCRR 100.2). In making this determination, the judge should consider all relevant factors, including (but not limited to): (1) the nature of the proceedings before the judge, including the amount in controversy or other interests at stake and the level of rancor or distrust among the parties or their counsel; (2) the stage of the proceedings before the judge, including whether there is an ongoing hearing or trial or if all papers have been submitted on a pending motion; (3) the nature of the event itself, including whether it may be reasonably perceived as unusually lavish; (4) the likelihood that the hosting law firm would improperly attempt to engage in impermissible ex parte communications with the judge; and (5) whether disclosure of the judge’s attendance to all parties would alleviate or dispel any possible appearance of impropriety. Both attendance and disclosure are within the judge’s discretion after considering these and any other relevant factors.
The Committee notes that if the bar association event is not held at a law firm’s offices, but instead at a neutral location such as a bar association, hotel or conference center, a judge may attend even if a law firm that is sponsoring or underwriting the event is actively involved in litigation in the judge’s court.
The Committee’s conclusion in Opinion 04-15 prohibiting a judge and a judge’s staff from participating in legal education programs co-sponsored by one or more bar associations and one or more not-for-profit corporations, law firms, or for-profit corporations when a co-sponsor is “a party in a contested, adversarial proceeding that is presently being litigated before the judge” is modified to include the analysis set forth above for determining when an entity is actively engaged in litigation before a judge.
1 There is no indication in the inquiry that any judges will be involved in soliciting or promoting any of the sponsors, which is impermissible (see Opinion 12-86; 22 NYCRR 100.2[C]).
2 The Committee notes that a judge must make “reasonable efforts” to avoid private social activity with attorneys appearing before the judge during actual trial days (see Opinion 11-125). However, bar association functions that are open to all members of the local bar are not “private” in that sense (cf. Opinion 09-92).