October 27, 2011
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: Whether a judge must disclose the relationship or disqualify him/herself when the judge and an attorney appearing before the judge are acquaintances, friends, or otherwise interact socially depends on such factors as the nature of the relationship with the attorney, the inter-relationships among their respective immediate family members, the frequency and context of their contacts, and whether they or their respective family members share confidences.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)(i);100.3(E)(1)(a)-(e); 100.3(F); 100.4(D)(5)(c); Opinions 11-101; 11-45;11-20; 09-234; 08-204; 08-166; 07-141; 07-126; Joint Opinion 07-114/07-120; Opinions 07-26; 06-170; 06-149; 06-44; Joint Opinion 05-89/05-90; Opinions 95-99 (Vol. XIII); 93-87 (Vol. XI); 92-22 (Vol. IX); 91-136 (Vol. VIII); 89-23 (Vol. III); 87-12 (Vol. I); Matter of Huttner (2006 Ann Rep of NY Comm. on Jud. Conduct, at 193); Matter of Robert (1997 Ann Rep of NY Comm. on Jud. Conduct, at 127, sanction accepted 89 NY2d 745 (1997); People v Moreno, 70 NY2d 403 (1987).
A judge who presides in criminal cases asks about his/her ethical obligations when certain attorneys the judge knows socially appear before him/her. The inquirer states these individuals were previously his/her colleagues at a legal services organization, and they regularly appear on behalf of the same organization as criminal defense attorneys. Although the judge’s professional association with the attorneys ended more than a decade ago, the judge’s friendships with each attorney originated before his/her professional association with them and have continued into the present.
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 not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law §14).
Clearly, a judge who cannot be impartial when a particular attorney appears before the judge must disqualify him/herself, and remittal is not available (see 22 NYCRR 100.3[E][a][i]; 100.3[F]). However, even when a judge’s disqualification is not mandated by either Judiciary Law §14 or the specific circumstances described in §100.3(E)(1)(a)-(e) of the Rules and the judge believes that he/she can be impartial, if the judge’s impartiality might reasonably be questioned by others, he/she must nonetheless disqualify him/herself, but, in such circumstances, the disqualification is subject to remittal (see 22 NYCRR 100.3[E]). Whether a judge’s friendship with an attorney causes a judge’s impartiality reasonably to be questioned depends on the facts of each case.
The Committee previously has issued a number of opinions addressing a judge's obligations when an attorney, with whom the judge has some kind of social relationship or friendship, appears before the judge. Because the Committee realizes it is difficult and time consuming for a judge to review all the existing opinions to determine how to proceed in his/her individual, fact-specific situation, the Committee takes this opportunity to consolidate and harmonize the existing opinions on this subject.
The Committee has consistently advised that in a particular proceeding, the presiding judge is ordinarily in the best position to assess whether his/her impartiality might reasonably be questioned when an attorney whom the judge knows socially, with whom the judge is acquainted, or whom the judge considers a friend appears before him/her (see Opinions 11-45; 07-26; 22 NYCRR 100.3[E]; cf. People v Moreno, 70 NY2d 403 ). This issue is especially challenging because human relationships are so varied, fact-dependent, and unique to the individuals involved. Therefore, the Committee can provide only general guidelines to assist judges who ultimately must determine the nature of their own specific relationships with particular attorneys and their ethical obligations resulting from those relationships. When doing so, a judge should take into account such factors as the nature of his/her relationship with the attorney; the inter-relationships, if any, among and between their respective immediate and close family members; the frequency and context of their contacts; whether they or their respective family members have financial, political or other ties; and whether they or their respective family members share confidences (see e.g. Opinions 11-45; 08-166; 07-26; 06-149; 06-44).
After reviewing its prior opinions, the Committee identifies three broad categories of interpersonal relationships between judges and lawyers who appear before them in order to assist them in evaluating their relationships so as to determine what, if any, ethical obligation those relationships impose on the judge.
The first category is acquaintance. In the Committee’s view, a judge is acquainted with an attorney when their interactions outside court result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc. For example, the judge and the attorney both attend bar association meetings (see Opinion 07-126 [judge and attorney appearing in judge’s court serve on a bar association elder law committee]), other professional gatherings, sporting or other school events involving their children; they patronize the same retail establishment; they see each other primarily when socializing with mutual friends, but not otherwise; they are members of the same country or golf club; or they attend the same religious services. Generally, neither will initiate social contact with the other, but they greet each other and interact cordially when they participate in common but not necessarily personally shared interests. In the Committee’s view, the mere fact that a judge is acquainted with and cordial to an attorney who appears before the judge when they come into contact outside the court - even if such contacts are regular or periodic - without more, is not a reasonable basis to question the judge’s impartiality (see 22 NYCRR 100.3[E]; Opinion 11-20; see also Opinion 09-234 [judge need not disclose nor disqualify if judge and attorney sit on same not-for-profit organization’s board of directors]).
This category also includes situations that initially may appear to be personal or close but are in fact instances of ordinary social hospitality. Pursuant to §100.4(D)(5)(c) of the Rules Governing Judicial Conduct, a judge may accept ordinary social hospitality even from attorneys who appear before them (see Opinions 95-99 [Vol. XIII] [full-time judge may attend and participate in member/guest golf outing as guest of attorney who practices in judge’s court]; 91-136 [Vol. VIII] [judge may attend opening of new law office of attorney who appears in judge’s court ]; 89-23 [Vol. III] [judge may attend formal dinner party celebrating prominent attorney’s 75th birthday when attorney’s firm appears in the judge’s court, and other judges and prominent attorneys are likely to attend]; 87-12 [Vol. I] [judge may attend ordinary holiday-type party given by a law firm or legal agency]; see also Joint Opinion 05-89/05-90 [judge need not disclose that attorney appearing in judge’s court attended judge’s annual holiday party).1 A judge is not required to disclose such contacts nor to disqualify him/herself simply because the judge has participated in such events at the invitation of an attorney or law firm but is free to do so, even if a party appears without representation.
Nevertheless, while such social contact is permissible, it is not without limitation. Accordingly, the judge should make reasonable efforts to avoid private social activity with attorneys appearing before the judge during actual trial days (see Opinions 92-22 [Vol. IX]; 95-99 [Vol. XIII]); the judge must refrain from ex parte discussion about matters pending in the judge’s court that involve the attorney (see Opinion 95-99 [Vol. XIII]); and the judge must avoid any actions that may be perceived to advance the private interests of an individual, office or other entity (see Opinion 06-170). Nor may such social contact occur if it would otherwise create an appearance of impropriety (see Opinions 92-22 [Vol. IX]; 06-170).
When an attorney with whom a judge has such a relationship appears before the judge, neither disqualification nor disclosure is required as long as the judge believes he/she can be fair and impartial. Rather, any decisions to disclose the nature of the relationship and any subsequent disqualification are left solely in the judge’s discretion.
II. Close Social Relationship
In contrast, if the relationship between a judge and an attorney can be characterized as a close social relationship, the judge must, at the very least, disclose the relationship either in writing or on the record, even if the judge believes he/she can be fair and impartial (see Joint Opinion 05-89/05-90). Whether the judge must disqualify him/herself when a party objects to the judge’s continued participation in the matter after such disclosure remains solely within the judge’s discretion (see People v Moreno, 70 NY2d 403 ; Opinion 08-166). However, if a party appears without representation the judge must disqualify him/herself, and remittal is not permitted (see Opinion 08-204; Joint Opinion 07-114/07-120).
For example, where an attorney worked for several years in the judge’s law firm while the attorney attended high school and college; worked for one year after graduating law school at a firm where the judge was a partner; subsequently maintained his/her own law practice in office space shared with the same law firm for two years; and for the last several years has maintained a personal relationship with the judge, during which time the judge’s children were members of the attorney’s wedding party; the judge, the attorney, and their spouses have dined together once a year; and the judge’s children cared for the attorney’s children, the judge and the attorney have a close social relationship (see Opinion 08-166). In the Committee’s view, the judge must fully disclose these facts and the nature of the relationship whenever the attorney appears before the judge and must exercise his/her discretion in determining whether to recuse upon request. The judge must also consider whether, given the circumstances and the rationale for any objection to his/her continued participation in the case, his/her impartiality can reasonably be questioned. If so, the judge must disqualify him/herself and exercise recusal (see id).
If the judge decides to preside after fully disclosing the nature of the relationship with the attorney, the judge should put his/her reasons for doing so on the record (see Opinion 11-20).
This Opinion modifies prior Opinions 93-87 (Vol. XI) (judge not required to disclose that judge and attorney have maintained a friendship since law school) and 92-22 (Vol. IX) (judge may have breakfast, lunch or dinner with attorney who practices in the judge’s court, but should avoid private social activity on actual trial days) to the extent they are inconsistent with this conclusion. This Opinion also modifies prior Joint Opinion 05-89/05-90 to the extent that it provides that a judge who has a close social relationship with an attorney who appears before the judge must disqualify him/herself, subject to remittal.
III. Close Personal Relationship
Where a judge and an attorney maintain a close personal relationship, the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). Therefore, the judge must disqualify him/herself when the attorney appears in the judge’s court (see Opinions 11-45; 07-26). Disqualification for this reason is subject to remittal (see 22 NYCRR 100.3[F]) unless a party appears without representation, in which case the judge must exercise recusal (see Opinion 08-204; Joint Opinion 07-114/07-120).
A close personal relationship is one where the judge and the attorney share intimate aspects of their personal lives. For example, where the judge, the attorney, and/or members of their immediate families share confidences, socialize regularly, vacation together, celebrate significant events in each other’s lives and/or share interests that are important to them personally (see e.g. Opinions 11-45 [judge and former law partner have known each other since childhood; practiced law together for almost a decade in hometown; partnership ended within the past three years; have many mutual friends; they and spouses continue to see each other at social events and family outings; children are close friends and visit each other’s homes; attorney is godparent of judge’s child; the attorney’s spouse buys small birthday and holiday gifts for judge’s child each year] and 06-149 [attorney who lives in same city as judge drives to judge’s house once or twice a month and they walk dogs together; for past two to four years, they dined together at a restaurant a few times each year and went to the beach together; attorney drove judge to re-election campaign events and has attended social functions at the judge’s residence]).
In these circumstances involving close personal relationships, the judge must disqualify him/herself when the attorney appears before the judge (see e.g. Opinion 07-26 [judge disqualified subject to remittal where relationship is sufficiently close to give rise to perception that judge’s impartiality might reasonably be questioned]). In Matter of Robert (1997 Ann Rep of NY Comm. on Jud. Conduct, at 127, sanction accepted, 89 NY2d 745 (1997), the judge was removed for presiding over cases involving persons with whom the judge had close personal relationships. Specifically, the judge, a former law enforcement officer, was friends for about 25 years with a law enforcement officer who was the arresting officer in several cases filed in the judge’s court. Several years earlier, they had taken a cross-country motorcycle trip together; had fished together; had socialized in each other’s homes; and often had coffee together in a local diner. The judge was also friends with an animal control officer and his father. The judge had coffee regularly with the father, and they discussed their common interest in guns. The judge and the animal control officer have hunted and fished together; have engaged in business dealings; have socialized at each other’s homes; and on at least two occasions, had taken a long road trip together. Notwithstanding the judge’s close personal relationship with the animal control officer, he presided over five animal control violation cases filed by the animal control officer. The judge also presided over numerous cases in which a close relative of the animal control officer and his father appeared before the judge as a defendant. Based on the appearance of impropriety, the Commission on Judicial Conduct confirmed the recommendation that the judge be removed (id.).
Opinion 11-20 is modified to the extent that it is inconsistent with this conclusion (judge who has close personal relationship with attorney must disclose nature and extent of relationship when attorney appears but has discretion to disqualify him/herself after considering all relevant factors). Also, Opinion 11-45 is modified to the extent that the relationship described is characterized as a close social relationship. Based on the standards articulated in the present opinion, the Committee now would characterize the relationship described as a close personal relationship.
IV. Decision by the Commission on Judicial Conduct
In Matter of Huttner (2006 Ann Rep of NY Comm. on Jud. Conduct, at 193), the Commission advised that because the respondent had a close social relationship with an attorney (relationship included meals together, family celebrations, and visits to each others’ homes),“[a]t the very least, respondent should have disclosed the relationship so that the parties and their attorneys, could have had an opportunity to consider whether to seek his disqualification (see Section 100.3[F] of the Rules)” (id. at 194). Based on the within current Committee Opinion, the Committee would characterize the relationship described in Matter of Huttner as a close personal relationship that would warrant disqualification, subject to remittal, unless a party appears without representation (see 22 NYCRR 100.3[E]; Opinion 08-204; Joint Opinion 07-114/07-120).
A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3 [E]). Whether disqualification is required when an attorney, whom the judge knows or otherwise interacts with outside the courtroom, appears in the judge’s courtroom, depends on the nature of their relationship. Generally, where a judge is acquainted with or casually socializes with an attorney in situations that are unplanned or coincidental, without more, neither disclosure nor disqualification is required. Nevertheless, the judge may choose to disclose such interactions with an attorney that occur outside the courtroom. Neither such a prophylactic disclosure nor a disqualification is required even if a party appears without representation.
Finally, where a judge maintains a close personal relationship with an attorney appearing before the judge (e.g. one that involves sharing intimate aspects of their lives or their families’ lives), the judge must disqualify him/herself from the proceeding. Disqualification for this reason is subject to remittal, but only if all parties are represented by counsel.
In the Committee’s view, the relationships the inquiring judge describes are close social relationships. Therefore, if all parties are represented, the judge must disclose the nature of his/her relationship with the appearing attorney and, if a party objects to the judge’s continued participation in the matter, the judge has the discretion to exercise recusal or to preside. However, if a party appears without representation, the judge must disqualify him/herself and remittal is not available.
1Not every interaction between a judge and an attorney will fit neatly into a particular category. While a purely professional relationship would not normally require disclosure, a wedding can be perceived as evidencing a closer social relationship which warrants disclosure for a limited period of time (see Opinion 06-44). Thus, although a judge considers his/her relationship with an attorney who occasionally appears in a judge’s court as purely professional and the attorney, therefore, an acquaintance, if the judge attends the attorney’s wedding, the judge must, for a reasonable period of time thereafter, disclose that he/she did so (see Opinion 11-101). And, where a judge attends a party for a public defender’s spouse and a religious function for a law guardian’s daughter, even though the judge has not recently socialized with either attorney, the judge should disclose his/her attendance when either attorney appears in the judge’s court for a reasonable period of time after such events (see Opinion 07-141). Also, a judge and attorney may have both social and professional relationships, neither of which standing alone warrants disclosure or disqualification, but when considered together create an obligation for the judge to disclose the relationships (see Opinion 08-166).