September 12, 2019
Digest: Although a full-time judge may provide informal, uncompensated legal advice to his/her second-degree relative behind the scenes, he/she may not be included among those permitted, by court order, to review the relative’s litigation opponent’s confidential financial information.
Rules: 22 NYCRR 100.0(I); 100.2; 100.2(A); 100.2(C); 100.4(G); Opinions 18-120; 14-89; 03-129; 92-118.
A full-time judge is providing uncompensated legal advice to a second-degree relative1 who is involved in contested matrimonial litigation. The relative’s spouse’s financial information is “the core issue” in the case. The parties are currently negotiating the issue of access to that information by the relative’s litigation consultants, subject to a confidentiality order that will be presented to the court for approval. The judge believes he/she cannot provide meaningful advice without access to this confidential financial information and thus asks if he/she may “be included in the class of individuals entitled to receive confidential information” under the confidentiality order. Other than the judge, all proposed class members are financial analysts and other consultants retained by his/her relative’s lawyers. If permitted, the judge would continue to give legal advice directly and only to his/her relative and not meet or communicate with the relative’s retained counsel or other litigation consultants.
A judge must 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]). Thus, a judge may not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]). Also, a full-time judge “shall not practice law [but] may, without compensation, give legal advice to a member of the judge’s family” (see 22 NYCRR 100.2[G]; Opinion 14-89 [“member of the judge’s family” presumptively includes sixth-degree relatives]).
We have narrowly construed the exception permitting a full-time judge to provide uncompensated legal advice to a family member (see e.g. Opinion 18-120). For example, a full-time judge may not prepare wills for family members (see Opinion 03-129) or represent a relative at a real estate closing (see Opinion 92-118). As we explained in Opinion 18-120:
A full-time judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings, but may not participate in discussions with their retained counsel, as that constitutes the prohibited practice of law. To avoid even the appearance of impropriety, the judge must not attend meetings with counsel.
We believe including the judge in this court-ordered “class of individuals entitled to receive confidential information” would create an appearance of impropriety. While a full-time judge with a cognizable legal interest in a matter may appear as a litigant, intervenor, or the like, and one with knowledge of relevant factual information may appear as a witness, the judge’s proposed participation does not fall into those permissible categories. Inclusion of the judge in the confidentiality order would necessarily create an impression that the judge is participating in pending litigation in some capacity other than those clearly permissible ways. Where, as here, other proposed class members are litigation consultants retained by the judge’s relative’s counsel, the public will reasonably assume that the judge is likewise a litigation consultant and/or part of the litigation team. Moreover, the motion to include the judge in the proposed class will bring the judge’s interest in his/her relative’s case to the presiding judge’s attention, even if there is no reference to the judge’s judicial status. For these interrelated reasons, we conclude it would be difficult, if not impossible, to avoid creating the impression that the judge is permitting his/her relative to seek a litigation advantage by virtue of his/her familial relationship with a judge (see 22 NYCRR 100.2[C]) and/or that the judge is impermissibly practicing law (see 22 NYCRR 100.4[G]).
Accordingly, although the judge may provide informal, uncompensated legal advice to his/her second-degree relative, he/she may not be included among those permitted, by court order, to review the relative’s litigation opponent’s confidential financial information.
1 A second-degree relative includes a sibling, grandparent, or grandchild by blood or marriage (see generally 22 NYCRR 100.0[I]).