January 28, 2016
Digest: A judge who presides over a re-adoption proceeding involving an attorney with whom the judge has an acquaintance-level relationship has no obligation to disclose the relationship or disqualify him/herself in matters involving the attorney or his/her law firm, if the judge believes he/she can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 12-104; 11-125; People v Moreno, 70 NY2d 403 (1987).
The inquiring judge is acquainted with a married couple who attend the same house of worship as the judge. One member of the couple is also an attorney whose law firm appears before the judge. The judge and his/her spouse once sat at the same table with the other couple at an event, but that is the extent of their social interaction outside of their cordial interaction at their religious institution. The couple recently adopted a child in another country, and asked this judge to preside over the re-adoption proceeding in New York. The judge has obtained administrative permission to conduct the re-adoption proceeding, as it will take place outside the jurisdiction where the judge usually presides. The attorney and his/her law firm sometimes appear before the judge, so the judge asks if disclosure or disqualification will be required.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including in circumstances specifically required by rule or law (see generally id.; Judiciary Law § 14). Where disqualification is not mandatory, however, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
A judge must evaluate his/her overall relationship with an attorney to resolve his/her disclosure or disqualification obligations (see Opinions 12-104; 11-125). Whether the overall relationship causes a judge’s impartiality to be questioned necessarily depends on the facts of each case (see id.).
The Committee has previously concluded that a judge need not disqualify him/herself or disclose the relationship, if the judge believes that he/she can be fair and impartial, in matters where an attorney with whom the judge has an acquaintance-level relationship appears (see Opinion 11-125). In identifying the acquaintance relationship, the Committee explained (id. [citations omitted]):
a judge is acquainted with an attorney when their interactions outside court result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc. For example, the judge and the attorney both attend bar association meetings, other professional gatherings, sporting or other school events involving their children; they patronize the same retail establishment; they see each other primarily when socializing with mutual friends, but not otherwise; they are members of the same county or golf club; or they attend the same religious services.
As such, in Opinion 12-104, the Committee advised that a judge may solemnize the marriage of an attorney who regularly appears before the judge and need not disclose the relationship or disqualify him/herself in matters in which the attorney appears, where the judge and attorney had no pre-existing social relationship. The Committee opined “the mere fact that a judge has solemnized an attorney’s marriage, without more, is not reasonably perceived as evidencing a social relationship between the judge and the attorney” that would warrant disclosure or disqualification (id.).
Here, the judge and his/her spouse plainly have an acquaintance-level relationship with the attorney and his/her spouse, as they have essentially no social interaction except attending the same religious institution. The Committee believes that presiding over an attorney’s re-adoption proceeding, much like solemnizing an attorney’s wedding, without more, cannot reasonably be perceived as evidencing a closer social relationship between the judge and the attorney than otherwise exists (see Opinion 12-104). Thus, if the judge believes he/she can be fair and impartial, neither disclosure or disqualification is required should the attorney or his/her firm appear before the judge.