September 4, 2014
Digest: (1) A judge who has received an unsolicited inquiry from a law firm’s recruitment director concerning post-judicial employment, but does not wish to explore the possibility of employment with the firm, may continue to preside over the firm’s cases and has no obligation to disclose the communication. (2) If the judge concludes that the law firm was not thereby attempting to unduly influence the judge’s judicial decisions and that the conduct does not otherwise seriously call into question an attorney’s honesty, fitness, or trustworthiness as a lawyer, the judge need not report the conduct to a disciplinary authority.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 13-61; 11-64; 11-48; 10-85; 08-08; 05-37; Joint Opinion 05-35/10-78; People v Moreno, 70 NY2d 403, 405 (1987).
A full-time judge states that a law firm’s recruiting director called the judge’s chambers and advised the judge’s assistant that, because the judge’s current term of office is ending, the law firm “would be interested in letting [the judge] know that the firm is looking for senior level attorneys at the firm, if [the judge] was interested in such a position.” The judge states he/she did not solicit the call and does not wish to explore employment with the law firm, which currently appears before the judge in several cases. The judge asks whether he/she has any obligation to disqualify him/herself or report the law firm as a result of the call, and whether he/she may “write the firm a letter regarding this behavior.” The judge has subsequently clarified that he/she believes, under the circumstances, the law firm was not actually attempting to influence the judge.
A judge must 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 also disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).1
Accordingly, when 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, subject to remittal, when that law firm subsequently appears in the judge’s court (see Joint Opinion 05-35/10-78). When the law firm ceases to be a prospective employer, however, disqualification is no longer required (see id.).
Here, however, the judge is not seeking employment with the law firm, but learned his/her chambers received an unsolicited call from a recruiter stating the law firm’s interest in hiring the judge. In these circumstances, the Committee concludes the judge’s impartiality cannot reasonably be questioned (22 NYCRR 100.3[E]), and he/she thus has no duty to disclose the firm’s recruitment efforts or offer to recuse in the law firm’s cases.
As for the law firm’s conduct and any possible reporting obligation, the Rules Governing Judicial Conduct provide that a judge who “receives information indicating a substantial likelihood that a lawyer has committed a substantial violation” of the Rules of Professional Conduct shall “take appropriate action” (22 NYCRR 100.3[D]). Generally, the Committee has advised that “a judge who learns of an attorney’s potential misconduct is ordinarily in the best position to evaluate and assess all relevant circumstances and determine whether there is a substantial likelihood that the lawyer’s conduct constitutes a substantial violation of the Rules of Professional Conduct” (Opinion 13-61). Moreover, a judge “is under no ethical obligation to investigate any alleged misconduct” (id.).
In Opinion 13-61, the Committee further explained:
If the judge concludes there is a substantial likelihood that a lawyer has engaged in a substantial violation of the Rules of Professional Conduct, the action the judge must take depends on the nature of the misconduct (see Opinion 11-48). If the misconduct ... seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the appropriate action is to report the conduct to the appropriate disciplinary authority (see Opinions 11-48; 10-85). However, if the misconduct does not reach that level, the judge has the discretion to determine what action is appropriate under the circumstances, and may therefore take some other, less severe action than reporting the conduct to a disciplinary authority (see Opinion 10-85). Of course, if the judge concludes that the misconduct is an insubstantial or technical violation, it is within the judge’s discretion to take or not take any action in response (see Opinion 11-48).
The Committee has advised that, where a judge concludes an attorney has attempted, unduly, to influence his/her judicial decision, the judge should report that to the appropriate disciplinary committee (see Opinions 13-61; 05-37). Here, however, the judge appears to have ruled out that motive. Thus, unless the judge concludes the law firm’s conduct otherwise seriously calls into question its attorneys’ honesty, trustworthiness or fitness as lawyers, reporting is not required (see Opinion 10-85).
Of course, if the judge decides there was a substantial violation of the Rules of Professional Conduct that does not reach the level of mandatory reporting, the judge must take “appropriate action,” which is left to the judge’s discretion (Opinion 10-85; 22 NYCRR 100.3[D]). Such action could include, among others, asking the law firm in writing to refrain from contacting the judge again about the possibility of post-judicial employment (see generally e.g. Opinions 11-48; 10-85; 08-08).
Finally, if the judge concludes the conduct described does not violate the Rules of Professional Conduct, or is merely a technical or insubstantial violation, he/she “is not required to take any action, but may do so in his/her discretion” (Opinion 11-48).
1 Where, as here, the facts presented do not implicate the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14), the remaining inquiry is whether the judge’s impartiality may reasonably be questioned. If not, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).