Joint Opinion 11-18/11-42
April 28, 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: A full-time judge may apply for a position as a School Superintendent, School District Administrator, or as a private arbitrator even though the judge must resign or retire from judicial office if and when he/she is ultimately hired for the position.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(F); 100.4; 100.4(A)(1)-(3); 100.4(D)(1)(a), (c); 100.4(F); 100.4(H)(1)(c)(1)-(2); Opinion 09-138; Joint Opinion 05-35/10-78 (Revised); Opinion 04-100.
In Inquiry 11-18, a full-time judge, who holds permanent New York State Education Department Certifications as a School District Administrator and School District Supervisor, asks whether he/she may apply for employment as a School Superintendent or School District Administrator without first resigning from judicial office. In Inquiry 11-42, a full-time judge who is retiring at the end of the year asks whether he/she may allow his/her name to be proffered for a possible appointment to arbitrate claims between parties to litigation commenced in a different court. The judge states that the arbitration would take place pursuant to an anticipated settlement agreement between the parties, and that the judge’s appointment would take place (if at all) only after his/her retirement.
A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In his/her extra-judicial pursuits, a judge must seek to minimize the risk of conflict with judicial obligations (see 22 NYCRR 100.4) and may not engage in extra-judicial activities that cast reasonable doubt on the judge’s capacity to act impartially as a judge, that detract from the dignity of judicial office, that interfere with the proper performance of judicial duties, or that are otherwise incompatible with judicial office (see 22 NYCRR 100.4[A]-). Nor may a judge lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]), or engage in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][a]). Moreover, a full-time judge may not serve as a private arbitrator (see 22 NYCRR 100.4[F]).
In the Committee’s view, the Rules Governing Judicial Conduct do not preclude a judge from applying for post-judicial employment as a School Superintendent or School District Administrator, or as a private arbitrator, subject to all ordinarily applicable limitations on extra-judicial activity throughout the application process. With respect to disqualification when a prospective employer appears before the judge, the Committee has previously advised (see Joint Opinion 05-35/10-78 [Revised]) that:
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]).
In the Committee’s view, the inquiring judges also must disqualify themselves under the same circumstances when their prospective non-law firm employer appears as a party (see 22 NYCRR 100.3[E]). But, if either 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).
Finally, because the judge in Inquiry 11-18 is a full-time judge, he/she would need to resign from judicial office in order to accept employment and receive compensation as a School Superintendent or School District Administrator (see 22 NYCRR 100.4[H][c]- [full-time judge may not receive compensation for extra-judicial activities performed for or on behalf of New York State, its political subdivisions or any office or agency thereof; or a school that is financially supported primarily by New York State or any of its political subdivisions, or any officially recognized body of students thereof]).
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]).