Opinion 21-150

October 28, 2021

Please Note: See AO-347, which we understand has been approved by the Court of Appeals, concerning the status of Sections 100.4(D)(5)(h) and 100.4(H)(2). As explained in Opinion 23-39: "Section 100.4(D)(5)(h) previously required that gifts accepted under the catch-all exception must be reported to the court clerk if their value exceeded $150.... Although this proviso has been deleted, [full-time judges] should comply with any Part 40 reporting requirements, if applicable (see 22 NYCRR 100.4[I])." Questions about Part 40 should be directed to the UCS Ethics Commission.

Digest:         A judge may accept a law firm’s offer of pro bono representation for the purpose of filing a lawsuit to challenge the Unified Court System’s vaccine mandates, where the law firm has not come and is not likely to come before the judge, subject to a reporting requirement if the value of the waived legal fees exceeds $150. The judge, however, may not disseminate a blanket email to all judges asking if any are interested in joining the proposed lawsuit.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.4(D)(5); 100.4(D)(5)(h); 100.4(H)(2); Opinions 19-104; 19-91; 19-34; 08-171/08-174; 05-47.

Opinion:

         A judge who wishes to challenge the Unified Court System’s vaccine mandates asks if it is ethically permissible to accept a law firm’s offer of pro bono representation in the matter.¹ The judge says the firm does not appear, and is not likely to appear, in any courts to which the judge is assigned. The judge also asks if it would be an ethical violation to send a blanket email to all judges on the court’s computer server advising them of the proposed lawsuit and “asking if any were interested in such representation.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and may not accept a “gift, bequest, favor or loan” except as permitted by the Rules Governing Judicial Conduct (22 NYCRR 100.4[D][5]). Even where none of the more specific exceptions apply, there is also a catch-all exception which permits a judge to accept a gift or favor if “the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $150.00, the judge reports it in the same manner as the judge reports compensation in Section 100.4(H)” (22 NYCRR 100.4[D][5][h]).

1. Waiver of Legal Fees

         In general, a judge may exercise the same rights to protect or advance their direct, personal interests as other similarly situated individuals who are not judges (see Opinions 19-91; 19-34). Clearly, a judge may consult with an attorney concerning his/her personal legal issues.

         In Opinion 05-47, we said that a judge may accept an attorney friend’s waiver of a legal fee in conjunction with a settlement achieved on behalf of the judge in a personal injury matter, where neither the attorney nor the attorney’s firm appeared before the judge. Although we recognized that “waiver of a fee for the services rendered does constitute a gift or favor” (id. [emphasis added]), we found that two exceptions applied (id. [citations omitted]):

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 personal friend whose appearance or interest in a case would in any event require disqualification under section 100.3(E).” 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.” 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.

While the attorney here is not a close personal friend of the judge, it appears that neither the attorney nor the law firm has come, or is likely to come, before the judge. Thus, the underlying facts in the current inquiry mirror those discussed in Opinion 05-47 and the catch-all exception applies. Accordingly, we conclude that, although the waiver of legal fees constitutes a “gift or favor,” the judge may nonetheless accept it under the catch-all exception and must report the value of legal services as required by Section 100.4(D)(5)(h) and Opinion 05-47.

         Thus, assuming the value of the waiver of attorney fees exceeds $150, the judge should report this information “in the same manner as the judge reports compensation in Section 100.4(H)” (22 NYCRR 100.4[D][5][h]; 100.4[H][2] [“The judge’s report shall be made at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves or other office designated by law.”]).

2. Soliciting Other Judges to Participate

         On the facts presented, we conclude the inquiring judge should not circulate a blanket email message to other judges inviting their participation in the contemplated litigation. Such action would, by implication, further the private financial interests of the law firm offering its services pro bono (see 22 NYCRR 100.2[C]).

Reminder - Disqualification Obligations

         While it is highly unlikely that this law firm will appear before the judge –- and we expressly rely on that fact in concluding that the catch-all exception permits this judge to accept a waiver of the firm’s legal fees -- we nonetheless wish to remind judges about the need for disqualification in matters involving their personal attorneys. When a judge retains counsel, the general rule during the representation is that the judge is disqualified, subject to remittal after full disclosure on the record, when their lawyer or that lawyer’s partners or associates, appear before the judge (see Opinion 08-171/08-174). Additionally, we recommend that judges review Opinion 19-104 for a detailed description of the protocol to follow with respect to disqualification, remittal and disclosure, as these subjects relate to an attorney/client relationship and projected litigation.

         Even if this judge ultimately decides not to pursue litigation after engaging the law firm the judge should, at a minimum, disclose the relationship for a period of two years following the conclusion of the attorney/client relationship in the event the law firm appears before the judge (see 22 NYCRR 100.3[E][1]; Opinions 19-104; 08-171/08-174).

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¹ The judge had no previous experience with or connection to the law firm, but contacted them based on the judge’s understanding that the firm is experienced in litigating vaccine mandates. The judge reports that the law firm’s offer of pro bono representation occurred spontaneously without explanation about two minutes into the judge’s initial meeting with one of its attorneys; at no time did the judge initiate, suggest or request the firm provide free or discounted legal representation.