October 22, 2015
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: Under the circumstances presented, where a judge offered selected attorneys the opportunity to purchase tickets to a local sporting event, and one attorney took advantage of the offer, the judge must disclose the transaction for three months when the attorney appears before him/her.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 14-51; 12-21.
This judge “recently won the opportunity to purchase tickets” to a local sports team’s home playoff games. The judge then offered “all the attorneys who practice before me that I knew were ... fans” of that sports team, as well as the court officers who work in his/her courtroom, the opportunity to purchase tickets from the judge “at cost.” One attorney and one court officer took advantage of the offer, out of approximately a dozen individuals. Although the attorney has appeared before the judge for many years, the judge notes they are acquaintances who do not socialize outside the courthouse.1 The judge now asks if he/she must disclose and/or recuse when that attorney appears before him/her.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
The Committee has advised that a judge may offer his/her private law library for free to members of a local bar association on a “first come, first serve basis,” and need not disclose or disqualify him/herself from matters in which an attorney recipient appears (see Opinion 12-21). The Committee noted that, although the Rules “explicitly restrict a judge’s acceptance of a gift, bequest, favor or loan, they do not impose equivalent restrictions on gifts a judge may make” (id. [citations omitted]). The Committee further reasoned that, “because the gift will be made available to all local attorneys on a equal basis, there is no reasonable inference that an attorney who has benefitted from the judge’s generosity has any relationship with the judge that might warrant disclosure or disqualification” (id.).
These circumstances are significantly different. Of particular note, the judge made the offer available not to the entire local bar, but only to attorneys he/she knew were fans of the same sports team as the judge. That is, the judge knew each of these attorneys well enough to know – and remember – their sports team preferences. When one of the “selected” attorneys accepted the offer, the judge then engaged in a financial transaction with him/her, albeit one without apparent economic benefit to either party.
Under the totality of the circumstances, to avoid any possible appearance of impropriety, the judge must disclose the transaction for three months after the sports event when the attorney appears before him/her. If, after disclosure, a party objects to the judge presiding, the judge has discretion whether to recuse after considering all relevant factors. “Because disclosure is mandated in lieu of disqualification” during this three-month period, the judge “must nevertheless disqualify him/herself if (a) any party appears without representation [or] (b) the judge does not wish to make full disclosure (Opinion 14-51).
1 The attorney and the judge both attended the same game, and, since their seats were near each other, they “exchanged many friendly comments” about the experience, as sports fans and acquaintances frequently do.