September 8, 2016
Digest: Provided he/she can be fair and impartial, a full-time judge may preside in matters involving (1) a government agency where the judge’s former public sector colleague and current social acquaintance has a high-ranking position and (2) a public law department headed by a part-time judge. No disclosures are required in these circumstances.
Rules: Judiciary Law §§ 16; 471; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.4(G); 100.5(B); 100.6(B)(1)-(4); Opinions 16-54; 15-185; 15-126; 15-45; 14-90; 12-85(B); 11-125; 09-06; 08-132; 04-121.
The full-time judge asks two unrelated questions about certain government agencies and law departments that regularly appear before him/her. The first issue concerns the judge’s former employment as a judge’s court attorney, ending over two years ago. A former colleague working in the same chambers now is deputy commissioner and chief legal counsel to an agency that frequently appears before the judge. The judge says their relationship is “friendly acquaintances” who do not socialize together. He/she also heard, indirectly, that the former colleague is dating another agency’s head that appears before the judge.
The judge asks if he/she may preside in cases where his/her former colleague’s current agency employer is involved either as a litigant or as counsel, and whether the judge’s obligations are affected by the rumored dating relationship. As for the second question, the head of a government law office that appears before the judge is also a part-time judge in the same county.1 The judge asks about his/her ethical obligations when that office’s attorneys appear before him/her.
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]). In particular, a judge must not allow family, social, political or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
1. Judge’s Former Public Sector Colleague and Current Social Acquaintance
The Committee has repeatedly advised that a judge must disqualify him/herself from matters in which his/her former law partner appears, “for two years from the termination of the relationship or final payment of any fees pending or owed between them, whichever is later” (Opinion 15-126). Here, however, the judge and his/her former colleague were non-judicial court employees working in the same judicial chambers. Such public employment involves no common financial or business interests, and more than two years elapsed since they were coworkers. Accordingly, their prior professional association, standing alone, cannot reasonably cause this judge’s impartiality to be questioned.
Instead, the key question here is their social relationship. 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 inquiring judge is generally in the best position to assess whether his/her impartiality might reasonably be questioned when an attorney the judge knows appears before him/her (see id.). Where, as here, the described relationship is clearly that of “acquaintances” who do not even socialize together, a judge need not disclose the relationship nor disqualify him/herself (see Opinion 15-45). The former colleague’s presumed dating relationship with the head of another agency that may appear before the judge does not change the analysis. Accordingly, this judge may preside when his/her former colleague appears, and need not make any disclosure.
As for the staff attorneys who report to the judge’s former colleague, there is nothing to indicate the judge has a direct relationship -– social, professional, or otherwise -- with them. Moreover, even where (unlike here) a judge has a social relationship with an attorney that may require disqualification or disclosure when that attorney appears, “this obligation does not automatically extend” to the attorney’s law firm colleagues (see Opinions 12-85[B]; 14-90; 15-185).
Thus, if this judge concludes he/she can be fair and impartial, he/she may preside. No disclosure of the relationship with his/her former public sector colleague and current social acquaintance is needed if the agency or its lawyers appear.
Of course the judge may, in his/her sole discretion, disclose the relationship as a purely prophylactic measure without incurring any further obligation (see Opinion 16-54).
2. Agency Head’s Judicial Status
The inquiry reveals no social, familial, or financial relationship between the inquiring full-time judge and the part-time judge who heads a government law department. This judge’s sole concern is, apparently, the agency head’s judicial status. However, a part-time judge, unlike a full-time judge, may continue to practice law (see 22 NYCRR 100.4[G]; 100.6[B]). Indeed, a part-time judge may generally appear before full-time judges (see e.g. Opinions 09-06; 08-132) unless a particular prohibition applies (see e.g. 22 NYCRR 100.6[B]-; Judiciary Law §§ 16; 471). Thus, the Committee has advised a full-time judge may allow a part-time judge to practice before him/her (see Opinion 04-121).
Accordingly, provided the judge concludes he/she can be fair and impartial, he/she may preside in matters involving a government law department headed by a part-time judge, and need not make any disclosure. This is true if the law department head appears personally or through his/her staff attorneys.
1 The Committee assumes the part-time judge’s position as agency head is an appointive one (see 22 NYCRR 100.5[B]).