September 10, 2015
Digest: A judge who learns an attorney appearing before him/her made a charitable donation to honor the judge’s deceased relative, as suggested by the relative’s published obituary, has no duty to disclose the donation or recuse him/herself in the matter, where the obituary did not mention the judge’s judicial status and neither the judge nor his/her family used or circulated the obituary to solicit funds.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.4(C)(3)(b)(i); Opinions 14-112; 14-69; 13-115; 04-140; People v Moreno, 70 NY2d 403 (1987).
The judge and his/her family published an obituary for a relative in local newspapers. The obituary listed the decedent’s surviving relatives, including the judge, but did not mention the judge’s judicial status. The obituary’s final line states that the decedent “can be remembered by contributions to” a specified charitable entity. Neither the judge nor his/her relatives further distributed the obituary to any person or entity or otherwise tried to use it to solicit funds for the charity. The charity has now provided the judge’s family with a list of those who made charitable contributions in the decedent’s honor; it does not state the amount of the donations. Although the obituary was published in newspapers of general circulation and not specifically targeted to attorneys, the judge has learned some donors are attorneys who may practice before him/her.
In two highly emotionally charged cases pending before the judge, one litigant is represented by an attorney who made a charitable contribution in the decedent’s honor, and the other litigant is proceeding pro se. The judge believes he/she can be fair and impartial in both cases, but asks whether disclosure and/or disqualification is required.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14). Conversely, where disqualification is not required under these objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
As a general rule, the Committee has advised “it is of no ethical consequence for a judge to make a monetary contribution to a non-profit organization..., even if the organization appears in the judge’s court” (Opinion 04-140). Thus, the judge may make such contributions without disclosure or disqualification, provided they are “relatively modest and not essential to the operation of [the] organization” (id.). In other words, a judge’s charitable contribution does not “reasonably” call into question the judge’s ability to be fair and impartial, unless it is “a particularly large contribution that is essential to sustain the operations of the particular agency” (id.).
Somewhat analogously, the Committee believes it is not reasonable to question a judge’s capacity to act impartially in a matter merely because an attorney appearing before the judge made a charitable contribution to honor the judge’s deceased relative. While specific traditions may vary by culture, friends and acquaintances of a bereaved individual are often moved by sympathy or politeness to acknowledge the death in culturally appropriate ways (see e.g. Opinions 14-112 [culturally mandated celebration and burial ceremony]; 13-115 [memorial service]).1 Thus, absent any unusual factors that would create an appearance of impropriety, the Committee can see no reason to require disclosure or disqualification based on an attorney’s ordinary, polite expressions of sympathy for a judge’s bereavement, provided the judge believes he/she can fairly and impartially perform his/her judicial obligations.
Accordingly, a judge who learns an attorney appearing before him/her made a charitable donation to honor the judge’s deceased relative, as suggested by the relative’s published obituary, has no obligation to disclose the donation or recuse him/herself in the matter, where the obituary did not mention the judge’s judicial status and neither the judge nor his/her family used or circulated the obituary to solicit funds (see generally 22 NYCRR 100.2[C]; 100.4[C][b][i]). Of course, if the judge questions his/her ability to be fair and impartial in a particular matter, the judge must not preside.
1 Just as a judge who is getting married may suggest that his/her wedding guests “direct their generous impulses elsewhere” rather than making a traditional wedding gift (Opinion 14-69), the Committee sees no impropriety in an obituary which suggests – in newspapers of general circulation, without reference to the judge’s judicial status – making a charitable contribution in lieu of sending flowers or food.