Joint Opinion 05-35/10-78 - REVISED
Issued December 8, 2011
(NOTE: Joint Opinion 05-35/10-78 is a revised and consolidated version of Opinion 05-35 and Opinion 10-78, which were previously released as separate opinions. The new Joint Opinion specifically overrules the former statement that a judge must disqualify him/herself from “matters in which a possible prospective employer, to which the judge ... intends to make application for employment, appears.”)
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: (1) A judge planning for retirement may seek future employment with law firms, governmental agencies or educational institutions, but must refrain from using official stationery or resources in soliciting potential future employers. (2) A judge who has a preliminary, informational meeting with members of a law firm to gather information about possible post-retirement employment, but who has neither actively pursued nor been offered a position at the firm, need not disqualify him/herself when the law firm subsequently appears in the judge’s court as long as the judge believes that he/she can be impartial. (3) Whether disqualification is required when the law firm later makes an offer of employment, but no employment relationship results, depends on the specific circumstances of the negotiations.
Rules: 22 NYCRR 100.2; 100.2(A);100.3(E)(1); 100.3(F); 100.4(D)(1)(a) - (c); Opinion 09-138; 08-71; Joint Opinion 07-87/95; 04-100; People v Moreno, 70 NY2d 403 (1987).
Two full-time judges ask about the ethical implications of a sitting judge seeking post-retirement employment. In Inquiry 05-35, the judge asks about the use of official and personal stationery and applying to “firms or agencies whose members or representatives appear before the judge.” In Inquiry 10-78, the judge asks whether he/she may preside in matters involving a law firm if the judge has had informal meetings with members of the firm about possible future employment. According to the inquiring judge, the meeting participants did not discuss compensation and no offer of employment ensued. The judge also asks whether he/she may preside in matters involving the same law firm if, after a subsequent meeting, the judge and the firm members discuss compensation, the firm offers the judge a position, but no employment relationship results.
A judge must always 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]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). And, a judge must not engage in financial and business dealings that (a) may reasonably be perceived to exploit the judge’s judicial position; (b) involve the judge with any business, organization or activity that ordinarily will come before the judge; or (c) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves (see 22 NYCRR 100.3[D][a]-[c]).
Subject to certain limitations, a judge planning for retirement may seek future employment with law firms, governmental agencies or educational institutions, but must refrain from using official stationery or resources in soliciting potential future employers. And, 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.
A judge also may meet with lawyers from a law firm to discuss the judge’s interest in future employment. However, whether a judge who participates in such a meeting must thereafter disqualify him/herself when the firm appears in the judge’s court will depend in part on the impetus for and purpose of the meeting (see 22 NYCRR 100.3[E]; People v Moreno, 70 NY2d 403 ). Where such a meeting is primarily informational in nature, the judge need not thereafter disqualify him/herself when the firm appears in the judge’s court unless the judge believes that he/she cannot be impartial (see id.). For example, a judge may wish to determine if a particular law firm is interested in adding a new member and, if so, whether the judge could be a viable candidate. Or, a law firm may want to learn whether the judge would consider post-retirement employment with the firm. In either case, the conversation is preliminary in nature, and the judge’s impartiality cannot reasonably be questioned when the firm later appears in the judge’s court (see id.).
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 (see 22 NYCRR 100.3[E] [judge should exercise disqualification in a proceeding in which the judge’s impartiality might reasonably be questioned]; 100.4[D][c] [judge should not engage in financial and business dealings that involve the judge in continuing business relationships with lawyers likely to come before the court on which the judge serves]). Nevertheless, if the judge believes he/she can be fair and impartial, is willing to preside, and if all parties are represented by counsel, the judge may disclose the reason for the disqualification so that the parties and their counsel may consider whether to remit the judge’s disqualification (see 22 NYCRR 100.3[F]; Opinion 04-100).1 The judge must fully disclose the reason for the disqualification and, in the absence of such full disclosure, the judge cannot continue to preside in the case (see id.; cf. Opinion 08-71).
Thereafter, the judge must continue to disqualify him/herself, subject to remittal, as long as there is any possibility that the firm may offer the judge employment. If the judge is offered employment, but no employment relationship results, the process of negotiating employment has ended and the law firm is no longer a “possible prospective employer.” Therefore, the judge may no longer have to disqualify him/herself when the law firm appears in the judge’s court (cf. Joint Opinion 07-87/95 [a judge may end a law clerk’s insulation from a law firm’s cases once the law clerk’s discussions with the firm about employment end without an offer of employment]). Whether disqualification is warranted will depend on the specific circumstances of the negotiations. For example, if the judge develops a personal bias or prejudice about the firm, or if the judge’s impartiality might reasonably be questioned under the particular circumstances presented (see 22 NYCRR 100.3[E]), then the judge must disqualify him/herself when the law firm appears in the judge’s court. And, depending on the circumstances of the judge’s disqualification, remittal may be available if all parties are represented by counsel (see 22 NYCRR 100.3[F]; cf. Opinion 04-100).
1 As the Committee has previously noted: “Remittal involves three-steps. First, the judge must fully disclose the basis for disqualification on the record. ... Second, following such disclosure, and without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion 09-138, relying on 22 NYCRR 100.3[F]).