May 2, 2019
Digest: A full-time judge may rent an apartment to a court officer who sometimes serves in his/her court.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(D)(1)(a)-(c); 100.4(D)(2); 100.4(D)(3); Opinions 16-176; 14-187; 09-134; 10-34; 96-90; 93-91; 90-76.
The inquiring full-time judge owns local rental property. A court officer who is sometimes assigned to the judge’s court would like to rent an apartment from the judge. The judge asks if he/she may do so.1
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 must not engage in financial and business dealings that (a) may reasonably be perceived to exploit the judge’s judicial position; (b) involve the judge with any business, organization or activity that ordinarily will come before the judge; or (c) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves (see 22 NYCRR 100.4[D][a]-[c]). Although a full-time judge is subject to additional restrictions (see 22 NYCRR 100.4[D]), he/she may nonetheless “hold and manage investments of the judge and members of the judge’s family, including real estate” (22 NYCRR 100.4[D]).
This inquiry is different from renting an apartment to “attorneys or others who are likely to appear before the judge” (Opinions 93-91; see also 10-34 [litigant]; 90-76 [state troopers]; 96-90 [drug and alcohol treatment center]) or from accepting a gift from a press photographer who regularly covers cases in the judge’s courtroom and whose livelihood may depend on the judge’s permission (see Opinion 16-176).
In our view, the Rules Governing Judicial Conduct do not prohibit a full-time judge who owns rental property from renting an apartment to a court officer employed by the Unified Court System in an arms-length business transaction, even if the officer is occasionally assigned to cover the judge’s court (cf. Opinions 14-187; 09-134). The judge may also consult his/her administrative judge to ensure the proposed relationship complies with any administrative policies or legal requirements.
1 Nothing in the inquiry suggests the judge has any involvement in court officers’ assignments; nor is there any suggestion he/she is targeting court officers as potential tenants.