January 27, 2011
Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.
Digest: (1) Where a judge’s court attorney left his/her former law firm two years ago, but is currently a client of the firm with respect to a personal legal matter, the judge should insulate the court attorney from all matters involving the firm while the firm represents the court attorney and for two years after the representation ends. (2) Where a court attorney has invited several former law firm colleagues to his/her upcoming wedding, a judge should, for a reasonable time after the wedding occurs, insulate the court attorney from all matters in which the court attorney’s wedding guests appear. (3) To the extent that a court attorney is close friends with several former law firm colleagues, the judge should insulate the court attorney from all matters in which the court attorney’s close friends appear. (4) Under the circumstances presented, the judge should disclose the court attorney’s insulation from all cases involving his/her former law firm, but may preside in a case, even if a party objects, if he/she can be fair and impartial. (5) The question of whether a court attorney may pay a “much reduced rate” for private legal services received during his/her employment with the courts raises questions of non-judicial ethics that are beyond this Committee’s jurisdiction.
Rules: 22 NYCRR Part 50; 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); Opinion 09-27; Joint Opinion 08-171/08-174; Opinions 08-166; 08-126; 07-141; Joint Opinion 07-105/07-119; Opinions 06-149; 06-127; 06-44.
The inquiring judge states that his/her court attorney previously worked for a large local law firm. Although the court attorney’s employment with the firm ended two years ago when he/she joined the court system, the court attorney has invited several of his/her former partners and associates to attend his/her upcoming wedding. Some of these former colleagues are also the court attorney’s close friends. Of these close friends, several appear regularly in the judge’s court and some will be in the court attorney’s wedding party.
The judge further states that an attorney from the firm who does not appear in the judge’s court represented the court attorney in a personal legal matter. The representation began while the court attorney was employed by the firm and continued after he/she began working for the court system. The law firm did not charge any fee for the services provided while the court attorney was employed by the firm, but the judge states that the court attorney and the law firm are discussing the fee, if any, to be charged for the services provided since the court attorney departed the firm.
The judge states that he/she insulated the court attorney from the firm’s cases during the first two years of the court attorney’s court employment and now asks for guidance on whether he/she must continue to insulate the law clerk when an attorney from the firm appears before him/her. The judge also asks whether he/she may permit his/her court attorney to pay a “much reduced” fee for the firm’s legal services.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any case where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). In addition, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and shall not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).
Disqualification and Insulation Based on Court Attorney’s Relationships
Attorney-Client Relationship. The judge should continue to insulate his/her court attorney from all matters involving the law firm as long as the firm continues to represent the court attorney, and for two years after the representation ends and all fees are paid (cf. Joint Opinion 08-171/08-174 [describing rule when judge has the attorney-client relationship]). In addition, during this same time period, the judge should disclose that he/she has insulated the law clerk, but may continue to preside as long as he/she can be fair and impartial. If a party objects to the judge presiding, the judge retains discretion to preside or disqualify him/herself (cf. Joint Opinion 08-171/08-174).
Close Friends. The Committee has not previously addressed a judge’s obligations when a court attorney’s close friends, who are not relatives or “almost like the court attorney’s family,” appear in the judge’s court (see Opinions 08-126 [requiring disqualification subject to remittal, as well as insulation of the law clerk, when law clerk’s spouse’s relative appears]; 06-127 [strongly urging disqualification subject to remittal, as well as insulation of the law clerk, when “very close friend, almost like family” of the law clerk appears]).
In the Committee’s view, a judge is not necessarily required to disqualify him/herself when a court attorney’s former colleague who is also the court attorney’s close friend appears in the judge’s court, including the friends who have been in the court attorney’s wedding party, as long as these close friends are not “almost like family” of the court attorney. Instead, the judge need only insulate the court attorney from the matter and disclose that he/she has done so (cf. Opinions 07-141 [describing rule when judge maintains a “close social relationship”]; 06-149 [describing rule when judge maintains a social relationship that is “sufficiently close so as to give rise to a perception that the judge’s judicial conduct or judgment may be influenced by their social relationship and thus may call into question the judge’s impartiality”]).
Unlike insulation based solely on a court attorney’s former professional relationship with a former colleague, insulating the court attorney because of his/her current close social relationship with a former colleague should continue indefinitely, because the mere passage of time does not attenuate an on-going close personal relationship. Nonetheless, the judge may continue to preside over matters involving his/her court attorney’s close friends as long as the judge can be fair and impartial (see generally 22 NYCRR 100.3[E]; cf. Opinion 08-166 [a judge who formerly had a business/professional relationship and currently has a social relationship with an attorney should disclose the relationship when the attorney appears; upon a request for recusal, the judge must exercise his/her discretion in determining whether his/her impartiality might reasonably be questioned]).
Wedding Guests. For a reasonable period of time after the wedding occurs, the judge should insulate the court attorney from matters in which attorneys who were guests at the court attorney’s wedding appear, even if they are not close friends of the court attorney (cf. Opinion 06-44 [a judge who gives a wedding gift and attends the wedding of an attorney who regularly appears before him/her should disclose such attendance when the attorney appears in the judge’s court, the duration of the disclosure depending on the nature of the judge’s relationship with the attorney]). The judge should disclose that he/she has insulated the court attorney (see e.g. Opinion 09-27; Joint Opinion 07-105/07-119). The exact period of time for insulation is left to the judge’s discretion, based on the judge’s assessment of the particular facts and circumstances presented on a case-by-case basis (see generally Opinion 09-27 [noting that a judge is in the best position to assess whether his/her impartiality might reasonably be questioned by taking into account matters such as the overall effectiveness of insulating the law clerk and any other relevant circumstances]). The judge may continue to preside, even if a party or attorney objects, as long as the judge can be fair and impartial (see generally 22 NYCRR 100.3[E]).
Gifts to Court Attorney
Discounted Legal Fees. Whether the court attorney may pay a “much reduced” rate for the legal services his/her former law firm has provided during his/her employment with the courts is governed by the Chief Judge’s Rules concerning the conduct of non-judicial court employees (see 22 NYCRR Part 50). Therefore, the inquirer’s court attorney should contact the Unified Court System’s Office of Court Administration Ethics Helpline for further guidance concerning this question (Contact: ETHICS HELPLINE: 1-888-28-ETHIC.).