March 16, 1992
Digest: A judge may socialize with attorneys but should avoid any private social activity with attorneys appearing before the judge during actual trial days.
Rules: Canon of Judicial Conduct 2A; 22 NYCRR 100.2(a).
A judge inquires as to the propriety of having lunch with local lawyers who practice before the judge. In particular, the judge inquires as to the propriety of having lunch with a lawyer friend who presently is involved in a litigated matter before the judge. The inquiry was prompted by the fact that opposing counsel objected, stating that his clients had observed the judge having lunch with the opposing lawyer and questioning whether the judge can maintain impartiality in light of the judge’s friendship with the other counsel.
This Committee has taken the position that no ethical problem occurs as a result of a judge accepting ordinary social hospitality from attorneys who practice in the judge’s court, Opinion 91-136, Vol. VIII [dealing with a judge attending the opening of a new law office]; Opinion 89-23, Vol. III [dealing with a judge attending the 75th birthday party of a practicing attorney]; Opinion 87-12, Vol. I [dealing with a judge being a guest at a party sponsored by a law firm or a legal agency]). For the same reasons, no impropriety exists with a judge having breakfast, lunch, or dinner with an attorney who practices in the judge’s court, as long as no discussions of pending matters take place between the judge and the attorney, and as long as there is no appearance of impropriety.
Canon 2A of the Model Code of Judicial Conduct states as follows:
The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.
Accordingly, during the course of a trial, on actual trial days, a judge should avoid any private social activity with the attorneys appearing before the judge for one side in the matter so as to avoid the appearance of impropriety.
In other situations, judge should exercise discretion and circumspection, depending on the circumstances, to avoid justifiable fears or complaints by lawyers or their clients.