June 12, 2014
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 accept free admission to a continuing legal education seminar offered by a private legal training organization that is owned and/or operated by an attorney who has not appeared, and is not likely to appear, in the judge’s court, subject to a reporting requirement if the value of the gift exceeds $150. In the event that the attorney later appears in the judge’s court, the judge’s obligation is to disclose the gift for a reasonable period of time following the seminar, and the length of such period of time is left entirely to the judge’s discretion after consideration of all relevant factors.
Rules: Judiciary Law § 14; 22 NYCRR Part 50; 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4(D)(5)(h); 100.4(H)(2); Opinions 12-187; 12-36; 11-127; 11-64; 07-141; 04-70; People v Moreno, 70 NY2d 403, 405 (1987).
The inquiring full-time judge states that an attorney who owns or operates a private, for-profit legal training organization has invited the judge and his/her court attorney to attend, without charge, an upcoming continuing legal education seminar. The judge states that the attorney has not appeared, and is not likely to appear, in the judge’s court. The judge asks whether he/she may accept the offer, and if so, the judge further asks about his/her ethical obligations in the event the attorney later appears in his/her court. The judge also asks whether his/her court attorney may accept the same offer.
A judge must 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]). A judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B]) and must disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E]).1 Although a judge may not accept all gifts, the Rules Governing Judicial Conduct permit a judge to accept a gift from a donor who is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge (see 22 NYCRR 100.4[D][h]), so long as accepting the gift does not create an appearance of impropriety or otherwise violate any provision of the Rules, and subject to certain reporting requirements in the case of a full-time judge (see Opinion 12-187; 22 NYCRR 100.4[H]).
The Committee believes that the circumstances presented fall squarely within the ambit of Section 100.4(D)(5)(h), because the attorney who has offered the judge and his/her court attorney free admission to the seminar has not appeared, and is not likely to appear, before the judge. It is, in effect, precisely the opposite situation from Opinion 04-70, where the inquiring judge and his/her law secretary were offered “a scholarship to attend a matrimonial training seminar offered by a private legal training organization that is owned and/or operated by an attorney who practices matrimonial law in the judge’s court, as does the attorney’s firm” (Opinion 04-70).
The Rules Governing Judicial Conduct therefore permit the inquiring judge to accept free admission to the seminar (see 22 NYCRR 100.4[D][h]). Because the inquirer is a full-time judge, if the value of the training is in excess of $150, the judge must report it in accordance with Section 100.4(H)(2).
However, the Committee believes that there is a possibility that the judge’s impartiality might reasonably be questioned if the attorney were to appear before the judge shortly after the judge accepted the attorney’s gift of free admission to a legal seminar (see 22 NYCRR 100.3[E]). Thus, if the attorney appears in the judge’s court “within a reasonable period of time after the event” (Opinion 07-141), the judge should disclose the gift.2 The Committee notes that the length of a “reasonable period of time” is left entirely to the discretion of the inquiring judge, who is in the best position to evaluate and assess all relevant circumstances relating to the appropriate length of time.
The Committee takes no position on whether the Rules Governing Conduct of Nonjudicial Employees (22 NYCRR Part 50) permit the judge’s court attorney to accept this invitation. That question must be resolved by the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50. (Contact: ETHICS HELPLINE: 1-888-28ETHIC).
1 There are two initial objective tests to determine if disqualification is mandatory: Is disqualification required under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][a]-[f]) or Judiciary Law § 14? If not, might the judge’s impartiality nonetheless “reasonably be questioned” (22 NYCRR 100.3[E])? If disqualification is not mandated under either objective test, 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). Applying these principles to the present inquiry, the first question is easily answered: the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14). Accordingly, this Opinion will focus on the second question.
2 Where, as here, disclosure is required for a period of time in lieu of outright disqualification, the judge must nevertheless disqualify him/herself during that period if any litigant is appearing without counsel, and remittal is not permitted (see e.g. Opinions 12-36; 11-127).