October 22, 2015
Digest: A court attorney-referee need not disclose or recuse from matters involving an attorney who is no more than an acquaintance, merely because the attorney’s sibling is a close personal friend.
Rules: CPLR 4301; 100.2; 100.3(E)(1); 100.6(A); Opinions 15-45; 11-125.
The inquiring court attorney-referee asks if he/she may preside where a close friend’s sibling is appearing as attorney in the case.1 The referee interacted with the attorney professionally in a prior nonjudicial capacity over a decade ago. Since then, the referee has met the attorney at family funerals and briefly spoke with the attorney once at the courthouse. However, they do not socialize together and have rarely seen each other, despite the referee’s long-term friendship with the attorney’s sibling.
Court attorney-referees must comply with the Rules Governing Judicial Conduct while performing their judicial duties and otherwise “so far as practical and appropriate” use the rules to guide their conduct (22 NYCRR 100.6[A]). Like judges, they must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must not preside in a proceeding where their impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
As summarized in Opinion 15-45:
Whether the particular relationship between a judge and attorney may reasonably cause a judge’s impartiality to be questioned is a fact-specific determination (see Opinion 11-125). The Committee has advised that the presiding judge is generally in the best position to assess whether his/her impartiality might reasonably be questioned when an attorney whom the judge knows appears before him/her (see id.). Nevertheless, in ... an acquaintance relationship where the judge and attorney mainly see each other in unplanned environments or when socializing with mutual friends, a judge is neither required to disclose the relationship nor disqualify him/herself, but should make reasonable efforts to avoid private social activity with any attorney acquaintance who will be appearing before the judge on actual trial days (see id.).
Just as a judge or quasi-judicial official’s obligation to disqualify him/herself based on a social relationship with an attorney friend “does not automatically extend to the [friend]’s colleagues” (Opinion 15-45), the Committee believes such an obligation does not automatically extend to a friend’s relatives.
Here, although the referee has a close personal relationship with the attorney’s sibling, his/her described relationship with the attorney is merely at the “acquaintance” level (see Opinion 11-125). Thus, if the referee can be fair and impartial, he/she may preside in cases where the friend’s sibling appears as an attorney, and need not disclose the friendship with the attorney’s sibling.
1 The inquirer classifies the friendship as a “close personal relationship” within the meaning of Opinion 11-125, meaning that he/she is disqualified, subject to remittal in appropriate circumstances, when the friend appears.