Opinion 09-134

June 3-4, 2009

Digest:         An acting Supreme Court Justice who has had no judicial involvement in a home foreclosure sale to be held in the same court where he/she presides may purchase the home at the foreclosure sale but must not lend, nor appear to lend the prestige of his/her judicial office to influence the sale.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); Opinions 08-95; 07-108; 06-93; 99-44 (Vol. XVII); 90-11 (Vol. V).

Opinion:

         An acting Supreme Court Justice asks whether he/she may purchase a home at a foreclosure sale held in the same court where he/she presides. According to the judge, he/she has had no judicial involvement in the foreclosure proceeding or the sale of the home but is only involved as a prospective purchaser.

         A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2), and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance his/her own private interests (see 22 NYCRR 100.2[C]).

         In the Committee’s view, the Rules Governing Judicial Conduct do not prohibit a judge from participating in a foreclosure sale on the same basis as any other private citizen, even in his/her own court, as long as another judge will preside over the proceeding (cf. Opinion 90-11 [Vol. V] [judge may bring a pro se case in small claims part of his/her own court before the other judge].

         However, the judge may not use his/her judicial office, or even appear to use it to influence the sale (see 22 NYCRR 100.2[A]; 100.2[C]). For example, the judge should not seek or act on any information that has not yet become available to the public about homes that will be offered for foreclosure in his/her court (cf. Opinion 99-44 [Vol. XVII] [prohibiting use of non-public information acquired in a judicial capacity for purposes unrelated to official judicial duties]). Nor should the judge alert his/her co-judge or court personnel of his/her interest in purchasing a home at the foreclosure sale, other than in the same time, place and manner as other members of the public who are not judges or court employees (cf. 22 NYCRR 100.3(B)(6) [judge shall not initiate ex parte communications]; Opinion 07-108 [inquiring judge may not suggest any course of action to another judge who is presiding over a matter that involves the inquiring judge’s business or real property]). The Committee further notes that the judge should not voluntarily disclose his/her judicial status during the course of the foreclosure sale unless he/she must do so pursuant to law or administrative rule (cf. Opinions 08-95 [judge/litigant should not disclose his/her judicial status to the judge presiding in the action]; 06-93 [when judge expresses his/her views to government officials as a private citizen whose personal interests will be affected by a pending decision, judge must not use official stationery or refer to his/her judicial office]).