Opinion 20-176

October 29, 2020

Digest:       A full-time judge may seek post-retirement listing on an ADR Provider’s roster. The judge need not disclose or disqualify in matters involving the “appeal” of decisions made by the ADR Provider’s special masters unless the ADR Provider itself appears or has a financial interest in the outcome of the proceeding.

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4; 100.4(A)(1)-(3); 100.4(D)(3); Opinions 16-54; 13-36; 12-94; 11-18/11-42; 05-35/10-78; People v Moreno, 70 NY2d 430 (1987).

Opinion:

         A full-time judge who has agreed to post-retirement employment with an alternative dispute resolution provider (ADR Provider)¹ asks if he/she (1) may continue to preside in a matter where a special master selected by the parties is employed by the ADR Provider and (2) may participate now, while a judge, in planning the nuts and bolts of this future employment. In the proposed planning session(s), the judge and the ADR Provider would:

discuss the plan to add [the judge] to the ADR Provider's roster and to begin preparation for [his/her] acceptance of cases for arbitration and/or mediation. [T]opics to be discussed would include but not necessarily be limited to: practices and expectations of the Provider; trainings the Provider would require [the judge] to attend before [accepting] assignments; the types of cases [the judge has] presided over in different subject matter areas, and citations of various decisions [the judge has] issued; and plans for advertising [the judge’s] services. [The judge has] been assured that no advertising would occur while [he/she is] still serving as a judge.

The judge also explains that, after retirement, he/she would be listed on a roster of individuals available to preside in ADR proceedings. The judge would be compensated by the parties for an agreed-upon fee, and the ADR Provider would share in a percentage of that fee. The exact percentage would vary upon the overall annual volume of fees resulting from the former judge’s services generated by selection from the ADR Provider’s roster, and not based on the amount in controversy.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, judges must disqualify themselves in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Where the objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 430 [1987]). In extra-judicial pursuits, a judge must seek to minimize conflict risks with judicial duties (see 22 NYCRR 100.4). For example, a judge must not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]) and may not engage in extra-judicial activities that cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the judicial office’s dignity, interfere with the proper performance of judicial duties, or are otherwise incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Moreover, among other limits on a judge’s financial and business dealings, a full-time judge must not serve as an “advisor, employee or other active participant of any business entity” (22 NYCRR 100.4[D][3]).

1. Participation in Planning Sessions for Post-Judicial Employment

         The Rules Governing Judicial Conduct do not preclude a full-time judge from seeking post-judicial employment with “law firms, governmental agencies or educational institutions” (Opinions 13-36; 05-35/10-78), or from applying for post-judicial employment “as a School Superintendent or School District Administrator, or as a private arbitrator” (Opinion 11-18/11-42), subject to all ordinarily applicable limitations on extra-judicial activity throughout the application process (see id.).

         For example, the judge “must refrain from using official stationery or court resources in soliciting potential future employers. Any communication to such prospective employers may mention the judge’s current position and experience, in addition to including a resume or other relevant materials concerning the judge’s qualifications” (Opinions 13-36; 05-35/10-78). We believe the planning session described here is well within the spirit of prior opinions, and does not impermissibly make the judge an “active participant” in the ADR Provider’s business (22 NYCRR 100.4[D][3]).

         However, the judge must not allow the ADR Provider, prior to the judge’s actual retirement from judicial office, to advertise or otherwise use the judge’s interest in or commitment to joining its roster to further the ADR Provider’s interests (see 22 NYCRR 100.2[C]).

2. Presiding in a Case Involving a Special Master from the ADR Provider

         The novel question here is whether the inquiring judge may preside in matters where the parties selected a special master from the roster of the judge’s prospective employer. The judge notes there is currently an “appeal” pending before the judge of a decision by the special master.²

         With respect to disqualification when a prospective employer appears before the judge, we have advised (Opinion 05-35/10-78 [citations omitted]):

Once a judge affirmatively seeks employment with a law firm by making an application for employment, lobbying for employment or otherwise actively pursuing employment, the judge must disqualify him/herself when that law firm subsequently appears in the judge’s court.

We applied the same standard to prospective employers that could appear as litigants before the judge (see Opinions 13-36 [not-for-profit prosecutor training institute]; 11-18/11-42 [prospective employment as school superintendent, school district administrator, or private arbitrator]). Indeed, once an entity “becomes the judge’s ‘possible prospective employer’” within the meaning of these precedents, “the judge is disqualified, subject to remittal where applicable, from matters in which the [entity] appears or participates as counsel or as a party” (Opinion 13-36 [emphasis added]).

         Here, as in Opinion 13-36, the prospective employer is “an entity that would not ordinarily appear before the judge” as a party, although it offers a roster of individuals who are available to serve as special masters in litigation. We conclude the judge need not disclose or disqualify in matters involving the “appeal” of decisions made by the ADR Provider’s special masters unless the ADR Provider itself appears or has a financial interest in the outcome of the proceeding. As described here, the ADR Provider has no such interest or involvement in the case before the judge. Thus, neither disclosure nor disqualification is required, provided the judge can be fair and impartial.

         Of course, the judge may, in his/her discretion, exercise a prophylactic disclosure of his/her interest or commitment to serving on the ADR Provider roster, without further obligation (see e.g. Opinion 16-54).

         As always, if the judge doubts his/her ability to be impartial in a particular case involving the ADR Provider or one of its special masters, then disqualification is required (see e.g. Opinions 13-36; 12-94).

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¹ For judicial ethics purposes, it is immaterial to us whether the judge will be legally deemed an employee or an independent contractor listed on the ADR Provider’s roster.

² We understand the judge may be asked to review multiple aspects of the special master’s decisions before retirement.