June 12, 2014
Digest: Under the circumstances presented, a part-time lawyer judge may enter into an agreement with a private company to provide security and marketing services as a subcontractor, even though the private company has a separate contractual relationship with a not-for-profit organization whose counsel regularly appears before the judge.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.6(B); 100.6(B)(4); Opinions 11-64; 09-36; 91-106 (Vol. VIII); People v Moreno, 70 NY2d 403 (1987).
A part-time judge wishes to enter into a subcontracting relationship with a private company (Company A) to provide security services, such as implementing administrative security controls and measures to ensure physical security of the facility; designing policies and procedures; training employees; and assuring security of the company’s software. The judge would also provide Company A with certain marketing services. The judge states that Company A does business with a variety of local private companies and governmental agencies and that business is largely facilitated and/or conducted under the auspices of a separate contractual relationship with a not-for-profit organization (Company B). Because of this relationship, Company B’s counsel will review and approve the contract(s) under which Company A will provide services to its clients.1 Although Company B’s counsel regularly appears in the judge’s court, the judge notes that the judge will have no direct contractual relationship with Company B and no reason to interact with Company B’s counsel. Under these circumstances, the judge asks whether he/she may enter into the proposed subcontractor relationship with Company A.
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]). A part-time lawyer judge may accept private employment that is not incompatible with judicial office and does not conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).2
The Committee previously has advised that a part-time judge may accept full-time employment as in-house counsel for an insurance company unless the insurance company is involved in matters likely to come frequently before the judge’s court, (see Opinion 91-106 [Vol. VIII]) and as an account manager for a health insurance broker (see Opinion 09-36). In both cases, the Committee advised that the judge must disqualify him/herself from matters involving his/her employer.
The judge in the present inquiry may likewise provide security and marketing services to Company A as a subcontractor, provided that doing so does not interfere with the performance of his/her judicial duties (see 22 NYCRR 100.6[B]), and the judge must disqualify him/herself from matters involving Company A.
Given the facts presented, the Committee sees no ethical impropriety in the judge entering into the proposed subcontractor relationship with Company A, provided that doing so does not interfere with the proper performance of the judge’s judicial duties. And, because Company B’s counsel will merely review and approve Company A’s service contracts and the judge will not be an employee of Company A and will have no reason to interact with Company B’s counsel, the judge’s impartiality may not reasonably be questioned when Company B’s counsel appears in the judge’s court (see 22 NYCRR 100.3[E]). Therefore, the judge may preside in those cases as long as he/she can be fair and impartial.
1 The judge advises that contracts for services will “simply ‘pass through’” Company B to Company A.
2 There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][a]-[f]) or Judiciary Law §14. Where, as here, it appears that none of those enumerated circumstances apply, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E]). If disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).