Opinion 18-102

June 21, 2018


Digest:         Assuming he/she can be fair and impartial, a newly elected judge may preside in cases of a lawyer who (a) formerly served on the executive committee of the judge’s local political party providing social media and website help to the party’s entire slate of candidates and (b) is an acquaintance who does not socialize privately with the judge but only interacts with him/her as parents of very young children during play dates and birthday parties. On these facts, neither disclosure nor disqualification is required.


Rules:          Judiciary Law §14, 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 12-125; 12-28; 11-125; 08-152; 07-26; 03-64; 02-108; People v Moreno, 70 NY2d 403 (1987).



         A part-time justice asks if he/she may preside in cases involving a newly appointed associate town attorney who often appears in his/her court on vehicle and traffic matters. During the judge’s recent campaign, the attorney served on the executive committee of a political party supporting the judge as one of its slate of candidates. As such, the lawyer helped all slate candidates on social media posts and webpage design and development.1 Also, the judge and attorney each have children under six years old. As fellow parents of young children, they socialize at the children’s play dates and birthday parties.

         Judges 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]). Thus, a judge 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 disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). However, where disqualification is not required under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

1. Assistance in Judge’s Recent Judicial Campaign 


         An elected judge’s obligation when a supporter or contributor appears before the judge “depends on the level of the supporter’s or contributor’s involvement in these campaigns” (Opinions 07-26; 12-28). Where an individual played “an active and significant role in the judge’s [election] campaign,” the judge must “disclose and in some cases disqualify” when he/she appears (Opinion 02-108). Active and significant roles include leadership positions in the judge’s campaign, such as “campaign manager, campaign coordinator, finance chair, or treasurer” (id.), or a continuing fund-raising role in the campaign (see Opinion 03-64).

         By contrast, a judge need not disqualify him/herself in matters involving an attorney who was appointed by a county political committee to advise several candidates during a recent election, “where the advisor did not play an active, significant or pivotal role in the judge’s campaign and the judge concludes he/she can be fair and impartial” (Opinion 12-28). Likewise, a judge may preside in matters involving a material witness who is an officer of political a party that designated the judge for judicial office, where the party official “played no role in the judge’s campaign” (Opinion 02-108). Further, simply asking others to vote for the judge, without more, does not require disqualification or disclosure (see Opinion 08-152).

         Here, the associate town attorney served on the local political committee and provided similar services to all slate candidates, not just this judge. He/she did not play an active, significant or pivotal role in the judge’s campaign. Accordingly, we conclude the judge’s impartiality cannot reasonably be questioned here (see 22 NYCRR 100.3[E][1]), and the judge may thus preside where the attorney appears, if he/she believes he/she can be fair and impartial, a matter confined to the judge’s sole discretion (see Opinions 12-28; 02-108; People v Moreno, 70 NY2d 403 [1987]).

2. Social Relationship as Fellow Parents

         A judge’s obligation based on a social relationship with an attorney depends on the facts of each case. In Opinion 11-125 (citations omitted), we advised that each judge


is ordinarily in the best position to assess whether his/her impartiality might reasonably be questioned when an attorney whom the judge knows socially, with whom the judge is acquainted, or whom the judge considers a friend appears before him/her. This issue is especially challenging because human relationships are so varied, fact-dependent, and unique to the individuals involved. Therefore, the Committee can provide only general guidelines to assist judges who ultimately must determine the nature of their own specific relationships with particular attorneys and their ethical obligations resulting from those relationships. When doing so, a judge should take into account such factors as the nature of his/her relationship with the attorney; the inter-relationships, if any, among and between their respective immediate and close family members; the frequency and context of their contacts; whether they or their respective family members have financial, political or other ties; and whether they or their respective family members share confidences.

         We then set three broad categories of interpersonal relationships between judges and lawyers to assist judges in assessing their relationships to decide their ethical obligations: acquaintance, close social relationship and close personal relationship (see Opinion 11-125). For the acquaintance-level relationship, requiring neither disclosure nor disqualification, typically “their interactions outside court result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc.” (id.). The judge and attorney do not generally initiate private social contact with each other, but instead “greet each other and interact cordially when they participate in common but not necessarily personally shared interests” (id.).

         While this judge must assess his/her entire relationship with the lawyer, we note the described relationship involves casual or incidental interaction prompted by the need to supervise their young children at play dates and birthday parties, and thus appears to be an acquaintance-level relationship under Opinion 11-125 that does not require disclosure or disqualification (see id.).2


         We further remind the judge, even for an acquaintance-level relationship, he/she must nonetheless make reasonable efforts to avoid private social activity with attorneys appearing before the judge during actual trial days; refrain from ex parte discussion about matters pending in his/her court that involve the attorney; and avoid any actions that may be perceived to advance private interests of a person, office or other entity (see Opinion 11-125 [citations omitted]). Nor may such social contact occur if it otherwise creates an appearance of impropriety (see id.).


         In sum, if this judge can be fair and impartial, he/she need not disclose or disqualify him/herself in cases if an attorney who (a) served on a political committee that provided social media and website assistance to the party’s entire slate of candidates, including the judge, and (b) is merely an “acquaintance” (as defined in Opinion 11-125) who interacts with the judge socially as fellow parents during play dates or birthday parties for their young children, but does not otherwise privately socialize with the judge.


1 The attorney was appointed as associate town attorney after the election.

2 Whether the judge concurs with this assessment, we recommend the judge “make a record, such as a memorandum to the file, of the basis for [his/her] conclusion” (Opinion 12-125 [“This practice, although not mandatory, may be of

 practical assistance to you if similar circumstances arise in the future or if anyone later questions your decision.”]).