May 4, 2017
Digest: (1) A part-time judge may volunteer with a departmental grievance committee's diversion program as a mentor/monitor for an attorney referred to substance abuse treatment. The judge must disqualify him/herself in matters involving the attorney while the relationship is ongoing and for two years thereafter. During this period, disqualification is not subject to remittal unless the attorney waives confidentiality.
(2) A part-time judge may volunteer with a bar association's lawyer assistance committee to encourage attorneys to participate in a 12-step recovery program or seek substance abuse counseling. Where the contacts are relatively minimal and occur exclusively in a group setting with other recovering attorneys, disqualification is not mandatory unless (a) the attorney asks the judge to recuse and/or (b) the judge doubts his/her ability to be fair and impartial. The judge must also advise the attorney that he/she will recuse on request, without explanation, if the attorney is uncomfortable with the judge presiding over a particular case as a result of the 12-step call.
Rules: Judiciary Law §§ 90(10); 499; 499(1); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(B); 1240.11(a)-(c); 1240.18; Opinions 15-129; 13-10; 13-09/13-52; 11-93; 08-183/08-202/09-112; 07-170; 04-31; 02-128; 00-15; 95-49; 90-201.
A part-time judge asks if he/she may engage in two volunteer programs intended to assist attorneys struggling with drug or alcohol problems. First, the judge asks if he/she may volunteer with a departmental grievance committee's program to divert certain cases of attorney misconduct from investigation or prosecution for "an appropriate treatment and monitoring program" (22 NYCRR 1240.11[a]). The judge would "act as a liaison between the attorney and the supervisor designated by" the lawyer assistance committee, monitoring the respondent attorney's progress and encouraging him/her to fulfill his/her obligations under the diversion program. The supervisor would then report back to the grievance committee.1 The judge anticipates he/she would recuse from all matters involving the subject attorneys.
Second, the judge asks if he/she may, as he/she did before assuming the bench, volunteer with a local bar association's lawyer assistance committee (see Judiciary Law § 499). The committee serves as "a point of contact for attorneys, their families and the judiciary to access community resources for professional evaluation or treatment, or referral to 12-Step groups." Although the judge hopes to "influence" attorneys to seek substance abuse counseling and/or participate in Alcoholics/Narcotics Anonymous,2 the judge's role does not involve extensive or individualized one-on-one contact with such attorneys. Rather, the judge participates in "committee screening of reports of impaired attorneys" to evaluate each report's source and possible corroboration. After this initial assessment, the judge may participate in an informal group intervention known as a "12-step call" with the attorney. In a 12-step call, several attorneys in recovery, "matched, to the extent possible, on parameters of age, practice experience and drug of choice with the impaired attorney," visit the attorney's office to share their own experience with substance abuse "and what participation in the [12-step] program has done for them." Unlike a professional drug or alcohol intervention facilitated by trained clinical staff, committee members do not provide any clinical or therapeutic services. If the attorney is receptive, committee members may attend some 12-step meetings with the attorney in the early days of his/her recovery, but they do not engage in "any active counseling or [mentoring] role."3
A judge must always 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 generally may speak, write, lecture, teach and participate in extra-judicial activities, subject to all applicable limitations in the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). For example, a judge’s extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A judge also must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). In addition, a judge must disqualify him/herself from a matter in which his/her impartiality might “reasonably be questioned” (22 NYCRR 100.3[E]).
As noted in Opinion 13-09/13-52 (citations omitted), the Rules “broadly permit judges to participate in efforts to improve the law, the legal system, and the administration of justice, and the Committee believes that participation in such activities is to be encouraged.” Thus, for example, a judge may review proposed bar examination questions for the National Conference of Bar Examiners (see Opinion 11-93), and “may submit an affidavit of good character in connection with an application for admission to the bar” despite the general proscription on testifying voluntarily as a character witness (Opinion 04-31). A judge may also meet with law school deans and various executive and legislative branch officials to express concern about the downward trend in minority representation within the legal profession, and to advocate for increased diversity within the legal profession (see Opinion 07-170).
This judge’s proposed activities are clearly intended to help improve the legal system and the administration of justice by encouraging attorneys to seek help with drug or alcohol problems that may interfere with their ability to practice law (cf. Opinion 13-10 [suggesting that speaking with the impaired attorney and contacting a lawyer assistance committee for advice may constitute “appropriate action” under the Rules]). Nor do these activities, as described, appear to advance any purely private interest (cf. 22 NYCRR 100.2[C]).4 However, while the Committee concludes that the judge may participate in both programs, the judge’s disqualification obligations differ.
1. Grievance Committee’s Monitoring/Diversion Program
With respect to participation in the departmental grievance committee’s diversion program for attorneys whose disciplinary issues may be related to alcohol or drug problems, the Committee has advised that a part-time judge, unlike a full-time judge, may serve on an attorney grievance committee (see Opinions 15-129; 02-128; 00-15; 95-49). Moreover, a part-time judge may provide drug counseling and education to prison inmates as part of his/her extra-judicial employment, subject to recusal if they appear before him/her (see Opinion 90-201). Accordingly, the Committee concludes a part-time judge may participate as a mentor/monitor in the diversion program. The judge must, however, disqualify him/herself from matters involving attorneys he/she interacts with in the diversion program, both during the pendency of the relationship and for two years thereafter.
Unless the attorney waives confidentiality, the judge may not disclose the basis for disqualification and therefore remittal is unavailable (see Judiciary Law §§ 90; 499; 22 NYCRR 1240.11[c]; 1240.18; Opinion 08-183/08-202/09-112 [“the attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, is paramount”]).
2. Lawyer Assistance Committee
Absent specific factors creating an appearance of impropriety, the Committee can see no reason to prohibit a judge from participating in a bar association’s lawyer assistance committee organized under Judiciary Law § 499.
As described, the interactions between this judge and the attorney are relatively brief and take place in a group setting where the judge and other recovering attorneys share their own experiences with substance abuse. Unlike the grievance committee’s diversion program, no ongoing counseling, mentoring or monitoring relationship is contemplated.
Given this much-reduced interaction and the lack of a one-on-one relationship, the Committee believes the judge’s impartiality cannot “reasonably be questioned” in all matters involving the attorney (22 NYCRR 100.3[E]).
Nonetheless, the Committee recognizes that an attorney could feel uncomfortable appearing before the judge shortly after a 12-step call involving the judge and might be uncertain about whether he/she can request recusal without exposing his/her struggles with substance abuse. Consequently, the judge must advise the attorney during the 12-step call that that he/she will recuse on request, without explanation, if the attorney is uncomfortable with the judge presiding over a particular case as a result of the 12-step call.5
As always, of course, if the judge doubts his/her ability to be fair and impartial in a particular matter, he/she must recuse.
1 On “proof of successful completion of the monitoring program, the Court may direct the discontinuance or resumption of the investigation, charges or proceeding, or take other appropriate action” (22 NYCRR 1240.11[b]). If the respondent attorney fails to comply or commits additional misconduct, the court may rescind the order of diversion and resume the investigation or disciplinary proceeding (id.).
2 Alcoholics Anonymous is "an international fellowship of men and women who have had a drinking problem" and "is open to anyone who wants to do something about his or her drinking problem" (www.aa.org). It is known, among other things, for its "12-step recovery program." Narcotics Anonymous follows a similar model, focusing on "a recovery process and peer support network that are linked together" for those who wish to live a drug-free life (www.na.org). Both entities are tax-exempt non-profits and charge no dues or fees for membership
3 The judge notes that if he/she ever agreed to "sponsor" an attorney in completing the 12-step program, "I would, of course, recuse myself" from matters involving the attorney.
4 For example, the judge does not propose to recommend a for-profit treatment provider, or to refer attorneys to an entity in which the judge has a financial interest or serves as an officer or director.
5 In so doing, the Committee trusts the judge will not “initiate, permit, or consider” any impermissible ex parte communications with the attorney about any matter before the judge (22 NYCRR 100.3[B]). The Committee assumes the attorney will only request recusal as needed for a reasonable period of time; if this proves incorrect, the judge may seek further guidance.