September 13, 2012
Digest: A judge may continue to refer cases to a court-sponsored mediation center on the consent of all parties and counsel, and need not disclose his/her spouse’s service on the center’s board of directors, where the director position is uncompensated and the judge’s spouse will not be involved in any mediations.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 11-127; 11-122; 91-03 (Vol. VII).
The inquiring judge’s spouse has been invited to serve on the board of directors of a local mediation center sponsored by the Unified Court System’s Office of Alternative Dispute Resolution and Court Improvement Program. The judge advises that the position is uncompensated, and that, although the judge refers cases to the mediation center, the judge can only do so on the consent of all parties and counsel. The judge asks for guidance on “1) my duty to disclose [my spouse’s] status on the board when discussing possible referral to the [c]enter in order to avoid any appearance of impropriety and, 2) any other ethical considerations the Committee suggests I should undertake.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
Although the present inquiry appears to be a matter of first impression, the Committee has previously addressed somewhat similar issues. In Opinion 91-03 (Vol. VII), the inquiring judge’s spouse was “a coordinator and salaried employee” of the county office of a “conflict resolution center, which ... is funded by the Office of Court Administration.” The Committee advised that the judge may refer cases to the mediation center but “must recuse himself or herself in any case where the judge’s spouse was the mediator or had any connection whatsoever with such mediation” (Opinion 91-03 [Vol. VII]). And, in Opinion 11-122, the Committee advised that a judge may appoint qualified persons to a standing advisory committee for the Unified Court System’s Office of Alternative Dispute Resolution and Court Improvement Program mediation program, where the advisory committee would “advise, assist, support and advocate, as well as assist in on-going evaluation of the [Court’s] Mediation Program.”1 To avoid any appearance of impropriety, the Committee also advised that, after making the initial appointment(s) to the advisory committee, the judge “must have no further involvement with the mediation program or [its] advisory committee ... other than to refer cases” for mediation in the regular course of his/her judicial duties (Opinion 11-122). The Committee noted that, if the judge appoints court employees to serve on the advisory committee, the judge must thereafter “insulate any staff member who serves on the advisory committee from any case that has been referred to the mediation program” if the case returns to the court for any reason (id.).
In the Committee’s view, the circumstances here are even less likely to create any appearance of impropriety or otherwise cause the judge’s impartiality to reasonably be questioned (see 22 NYCRR 100.2; 100.3[E]). As an unpaid member of the mediation center’s board of directors, the judge’s spouse will not be a salaried employee of the center and will neither perform mediation nor supervise or coordinate the work of other mediators (cf. Opinion 91-03 [Vol. VII]). And, on these facts, this inquiry does not in any way suggest the judge is responsible for his/her spouse’s appointment to the board of directors (cf. Opinion 11-122). Accordingly, the Committee concludes that the inquiring judge may continue to refer cases to the court-sponsored mediation center on the consent of all parties and counsel, without disclosing his/her spouse’s service on the center’s board of directors, where the director position is uncompensated and the judge’s spouse will not be involved in the mediation of any case.2
1 The Committee noted that “neither the judge nor the judge’s appointees on the advisory committee will be involved in mediating any individual cases” (Opinion 11-122).
2 The judge may nonetheless, in his/her discretion, voluntarily make such disclosure, even if a party is unrepresented, without incurring any obligation to disqualify him/herself (see Opinion 11-127).