Opinion 05-47

April 21, 2005

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         Under the circumstances, the judge may accept the waiver of an attorney’s fee for the settlement of a negligence claim on the judge’s behalf.

Rule:            22 NYCRR 100.4(D)(5)(e),(h); 100.4(H)(2); Opinion 98-17 (Vol. XVI).

Opinion:

         The inquiring judge asks whether it is permissible to accept the waiver of an attorney’s fee for the settlement of a negligence claim. Injured in an accident in a store, the judge asked a friend and former colleague to represent him/her. No retainer agreement was signed nor was a lawsuit filed. The matter was settled for $7,500 and the judge told the attorney to take the fee from the settlement. Instead, the attorney sent the judge the full settlement with a note expressing his/her gratitude for the advice and wisdom provided when they were colleagues and the judge was the attorney’s supervisor. The judge notes that neither the attorney nor the attorney’s firm have appeared before him/her; and, if they did, the judge would recuse.

         Under the circumstances, the Committee is of the opinion that the judge may accept the waiver. The waiver of a fee for the services rendered does constitute a gift or favor. Section 100.4(D)(5)(e) of the Rules Governing Judicial Conduct permits a judge to accept “a gift, bequest, favor or loan from a relative or close personnel friend whose appearance or interest in a case would in any event require disqualification under section 100.3(E).” 22 NYCRR 100.4(D)(5)(e) See Opinion 98-17 (Vol. XVI). Further, section 100.4(D)(5)(h) permits the acceptance if “the donor is not a party or other person who has come or is likely to come before the judge.” 22 NYCRR 100.4(D)(5)(h). Both provisions appear to have been met and thus it is not unethical for the judge to accept the waiver of the attorney’s fee. However, in view of the fact that the value of the waiver clearly exceeds $150, we advise the judge to report it in accordance with section 100.4(H)(2) of the Rules as provided for in section 100.4(D)(5)(h).