May 9, 2017
This responds to your inquiry (17-27) asking whether, as a full-time jurist, you may have discussions with various public and private entities concerning potential post-judicial employment. In addition, you inquire whether, after leaving the bench, you may appear before various Unified Court System judges including former colleagues.
A judge must always avoid even the appearance of impropriety and must always promote confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Toward that end, the Committee has repeatedly advised that judges are not precluded from seeking post-judicial employment with law firms, governmental agencies or educational institutions, subject to all ordinarily applicable limitations on extra-judicial activity throughout the application process. Provided that a judge can remain fair and impartial, employment discussions alone will not require disclosure or disqualification. However, if the judge affirmatively seeks employment by applying, lobbying or otherwise actively pursuing employment opportunities with a law firm or entity that appears before him/her, he/she must disqualify him/herself when it appears subject to remittal if appropriate. The same advice applies to pursuing negotiations with television networks for post-judicial employment as a legal commentator.1
The Rules Governing Judicial Conduct do not apply to a fully-retired judge of the Unified Court System who is not serving in any judicial or quasi-judicial capacity, and the two-year restriction of Part 16 applies to former appellate judges, rather than trial judges.2 Therefore, any restrictions on a judge’s ability to practice in particular courts or before particular judges present legal questions under applicable statutes and the Rules of Professional Conduct (22 NYCRR Part 1200).
Assuming a former judge is otherwise permitted to appear in a particular case, he/she is nevertheless ineligible, for the first two years after leaving judicial office, for appointments governed by Part 36 of the Rules of the Chief Judge in any court within the jurisdiction where the judge served (see 22 NYCRR 36.2[c]).
Enclosed for your convenience are Opinions 13-36, 12-37, 10-155, 08-214, 05-35/10-78, 04-121, and 89-22, which address these issues.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court
1The Committee trusts that, whatever the nature of the employment the judge is seeking, the judge will be careful to maintain the dignity of judicial office as long as he/she is a sitting judge (see generally 22 NYCRR 100.2[A]; 100.4[A]).
2 Court of Appeals and Appellate Court judges may not appear before the appellate court on which they served for a period of two years (see 22 NYCRR 16.1).