Opinion 15-106

June 11, 2015


Digest:         Under the circumstances presented, the judge need not disclose a brief and non-substantive conversation with counsel at a bar association function, and both the judge and his/her law clerk may continue to conduct settlement conferences in the case.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A), (B), (C); 100.3(B)(6); 100.3(E)(1); Opinions 12-50; 10-68; 09-75; 09-09; 08-23; 07-188; 92-22 (Vol. IX); 88-100 (Vol. II); People v Moreno, 70 NY2d 403 (1987).



         The inquiring judge states that an attorney who has been appearing before the judge in connection with a particular case recently approached the judge at a bar association event. Although the jury had rendered its verdict, the judge notes that certain post-trial motions remained pending before him/her. The judge attempted to discourage the attorney from speaking to him/her, and the attorney stated that he/she knew the appropriate parameters. The attorney soon engaged another nearby attorney in conversation, mentioning his/her recent appearance before the inquiring judge and praising the judge’s handling of bench conferences. The judge is confident that he/she can remain fair and impartial in the case but asks whether he/she must nonetheless disclose the encounter to the attorney’s adversaries on the post-trial motions, and whether the judge or his/her principal law clerk may conduct future settlement conferences in the matter.

         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]). Thus, for example, a judge must respect and comply with the law (see id.), 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 not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must also accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B][6]). Thus, a judge is prohibited from initiating, permitting, or considering ex parte communications or other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, unless an exception applies (id.). A judge also must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). Conversely, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The Committee has previously advised that “a judge’s serving as a member or officer in a bar association is to be encouraged” (Opinion 88-100 [Vol. II]; see also e.g. Opinions 10-68; 09-09), and that judges may attend meetings with lawyers to discuss the functioning and improvement of the court system, even when those lawyers are actively and directly involved in matters before those judges, subject to certain limitations (see Opinion 07-188). Further, the Committee has advised more generally that a judge may socialize with attorneys, “but should avoid any private social activity with attorneys appearing before the judge during actual trial days” (Opinion 92-22 [Vol. IX]).

         The Committee has advised that, where the judge presiding over a case receives an inquiry from another judge about a relative’s trial testimony in a non-jury, civil matter, but “the ex parte communication did not involve any discussion of the subject matter of the pending proceeding or the content of the witness’s testimony,” the presiding judge’s impartiality cannot “reasonably be questioned” (Opinion 09-75 [noting that “the communication was innocent, inadvertent and not the type that could reasonably be perceived as influencing a judge presiding over a non-jury civil trial,” but suggesting disclosure under the circumstances presented, even though it is not ethically required]). The Committee has also advised that a judge’s impartiality cannot reasonably be questioned merely because the judge took a tour of a correctional facility close in time to an incarcerated defendant’s contempt hearing, even though “the superintendent who conducted the tour was called as a witness against the defendant at the contempt hearing,” given that the judge “did not have any contact with the defendant nor did [the judge] and the superintendent discuss the subject matter of the pending contempt application or the content of the superintendent’s testimony” (Opinion 12-50).

         Here, too, the Committee concludes that the inquiring judge’s impartiality cannot reasonably be questioned under the circumstances presented. The inquiring judge attempted to discourage the attorney from speaking to him/her at all, and the attorney’s brief comments appear to have no connection to issues before the judge in any pending post-trial motions (cf. Opinion 08-23 [considering as a relevant factor that the judge “determines, in good conscience, that he/she can decide the pending issues without considering the [ex parte] communication”]). Specifically, it appears that the subject matter of the conversation consisted only of the attorney expressing satisfaction with the manner in which the judge conducted bench conferences during the trial phase of the case, which is now concluded. Moreover, the communication itself did not occur in private or under any other circumstances that might raise concerns about the propriety of the judge’s conduct but, rather, openly at a bar association function.

         Therefore, under the circumstances presented, the Committee concludes the inquiring judge need not disclose or take any other action with respect to the brief and non-substantive conversation with counsel at a bar association function, and both the judge and his/her law clerk may continue to conduct settlement conferences in the case.