September 6, 2018
Digest: A town justice, on behalf of the justice court, may accept a testamentary bequest so-ordered by the surrogate’s court to hold a holiday party at the courthouse. The court may invite lawyers to attend the party by posting notices with the bar association and/or at the courthouse.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(D)(5); Opinions 17-80; 15-186; 13-142; 12-21; 09-167; 93-42.
A town justice asks if the court may host a holiday party using approximately $1,000 bequeathed to it for this purpose, as approved by the surrogate’s court. Under the terms of a so-ordered stipulation, the local bar association will use the funds to cover party expenses, either paying the vendors directly or reimbursing individuals based on invoices. The justice further asks if the party’s guest list may include lawyers who regularly appear before the court.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s extrajudicial activities must be compatible with judicial office and 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]-). Further, a judge must disqualify him/herself from any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
In some circumstances, a judge may accept gifts on behalf of the court (see e.g. Opinions 13-142 [award and monetary grant]; 09-167 [artwork]; 93-42 [recording system]).1 As we observed in Opinion 13-142 (some citations omitted):
Although a judge’s ability to accept a gift is subject to certain restrictions (see generally 22 NYCRR 100.4[D]), different considerations apply when a judge is not accepting a gift personally but only on behalf of the Unified Court System.
Somewhat analogously, a judicial association may accept an appropriate donation of food from a local restaurant for a cultural celebration at the courthouse that will be open to the public (see Opinion 17-80). Here, too, the judge is not accepting a personal gift. Instead, the judge is accepting a bequest on behalf of the justice court, consistent with the so-ordered stipulation. The vendors or individuals who expend money for the party will be paid or reimbursed for actual expenses out of the bequest. We can see no conflict of interest or appearance of impropriety in the described arrangements. Accordingly, the judge may accept the bequest on behalf of the town court and hold a holiday party as approved by the surrogate’s court.
With respect to the proposed guest list, we believe some caution is required to avoid any possible appearance of favoritism. We have said a judge’s offer to give his/her law library books free to any member of a local bar association on a “first come, first serve basis” creates no appearance of impropriety (Opinion 12-21). In particular, where the offer is made available to all local attorneys on an equal basis, there is no reasonable inference that an attorney who has taken advantage of the offer has any special relationship with the judge that might warrant disclosure or disqualification (see id.). By contrast, where a judge made a particular opportunity available “not to the entire local bar, but only to attorneys he/she knew were fans of the same sports team,” the judge had to make disclosures for several months when the attorney who took advantage of the offer appeared before him/her (Opinion 15-186).
Thus, while clearly, the judge may permit attorneys to attend the holiday party, we likewise believe the offer of admission should be made available to all local attorneys on an equal basis to avoid any possible appearance of impropriety and potential disclosure or disqualification issues. Therefore, instead of establishing a guest list naming specific attorneys, the court may place an advertisement in the bar association’s website or newsletter and/or post flyers or notices conspicuously at courthouses.
1 We have said “it may be helpful for a judge to consult with his/her administrative judge to determine what, if any, administrative procedures the judge should follow in accepting a gift or grant on behalf of his/her court or the Unified Court System” (Opinion 13-142 fn 1 [citations, brackets, and quotation marks omitted]).