January 27, 2022
Digest: A new full-time judge (1) need not file a disclosure with the court clerk under 22 NYCRR 100.4(H) for income earned before assuming the bench; (2) may make a modest donation to an animal shelter on behalf of a former client in connection with the closing of the judge’s law practice; (3) may give another judge an artwork created by a former client.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(G); 100.4(H)(2); 100.4(I); Opinions 21-98; 21-13; 18-118; 17-157; 15-128; 14-67; 04-137; 04-42; 97-148; 90-78.
The inquiring full-time judge recently assumed the bench, and now asks three distinct questions touching on their former practice of law.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A full-time judge “shall not practice law” (22 NYCRR 100.4[G]) and must comply with certain financial disclosure requirements (see 22 NYCRR 100.4[I]). In addition to any disclosures required under Part 40 and those required in connection with recusal, a full-time judge must also “report the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation so received” (22 NYCRR 100.4[H]). Where required, this report concerning compensation for permissible extra-judicial activities “shall be made at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves or other office designated by law” (id.).
1. Disclosure of “Partnership Retirement Income”
The judge first asks if it is necessary to “report or register that I will receive partnership retirement income for work completed prior to” assuming the bench. The judge anticipates “receiving this income over the next 3 years.1
We conclude that a full-time judge need not file a report with the clerk of the court under Section 100.4(H)(2) with respect to compensation received for legal services rendered before assuming the bench (see Opinions 97-148; 14-67). Significantly, such payments are not compensation for extra-judicial activities performed during the judge’s term of office.
However, we note there could potentially be reporting obligations under Part 40, which we cannot address (see e.g. Opinion 21-98). The Unified Court System’s Ethics Commission (tel. 1-212-428-2899) is the agency with the authority to interpret Part 40.
2. Charitable Donation in Honor of Former Client
While practicing law, the judge offered to make a personal monetary contribution of $100 in a client’s name to an animal shelter. The judge would like to follow through with this promise as a “nice gesture” to their former client.
A new full-time judge may undertake a variety of ministerial and administrative activities in connection with the closing of their former law practice, provided such activities do not reasonably create an impression that the judge is continuing to practice law (see e.g. Opinions 21-13; 17-157; 15-128; 04-137).
Here, we conclude that following through on a promise to make a modest and reasonable charitable contribution in the former client’s name from the judge’s personal funds is essentially ministerial in nature and is permissible as part of the winding down of the judge’s law practice.
3. Gift to Judicial Colleague
One of the inquiring judge’s former litigation clients is an artist who unobtrusively drew likenesses of “everyone in the courtroom” during a trial. At the conclusion of the trial, the client gave several of these artworks to the inquirer, including one that depicted the trial judge (“Judge B”). Now that the inquirer has assumed the bench, the inquirer would like to give Judge B a copy of the former client’s artwork.2
We have previously said a judge’s spouse may paint a portrait of another judge to be displayed in the courthouse, provided that the spouse receives no payment except for reimbursement for canvas and framing (see Opinion 90-78). Here, too, the proposed gift will not impermissibly advance any private interests (see 22 NYCRR 100.2[C]). We note that the trial has concluded, the former client is no longer a litigant before Judge B, and the gift will be made from one judge to another, who are of equal standing in their professional relationship with one another. Nor is there anything in the inquiry to suggest the artwork has more than nominal value. Accordingly, we see no reason to prohibit this exercise of collegiality in gift-giving from one judge to another.
1 The judge plans to recuse in all matters involving their former law firm and/or former partners and associates while the payments are ongoing, and for two years thereafter (see Opinions 04-42; 18-118).
2 If there were to be any further proceedings in the matter, the inquiring judge thinks they would take place before a different judge, since Judge B now presides in a different court.