March 10, 2022
Digest: (1) A judge-elect who will preside in many cases involving a city may permit the Corporation Counsel to administer their oath of office. (2) A judge’s social relationship with the Corporation Counsel does not, without more, require disqualification or disclosure when the assistant’s corporation counsel or other subordinates appear before the judge.
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 17-92; 16-114; 15-45; 14-182; 14-90; 13-59; 12-147; 12-85(B); 11-125; 09-240/09-241/10-06.
A new judge has been assigned to a court part where many cases involve claims against the city and are handled by the Corporation Counsel’s office. The judge was employed as an assistant corporation counsel more than two decades ago, and considers the Corporation Counsel to be both a personal friend and a former mentor. The judge asks if the Corporation Counsel may administer the judge’s oath of office at an upcoming induction ceremony and whether disclosure or disqualification will thereafter be required when subordinates of the Corporation Counsel appear before the judge. The judge advises that the Corporation Counsel does not personally make court appearances but directly and/or indirectly supervises all the assistant’s corporation counsel who appear before the judge.
A judge must 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 allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in cases where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including where mandated by rules or statute (see 22 NYCRR §100.3[E][a]-[f]; Judiciary Law § 14).
1. Selecting the Corporation Counsel to Administer the Judge’s Oath of Office
We have said that a “ceremony at which a statutorily required oath of office is administered is a civic event calling for collegiality among public office holders and tends to promote civil relations and discourse between the various branches of government” (Opinion 09-240/09-241/10-06). Accordingly, administering a public official’s oath of office and/or attending the public official’s swearing-in ceremony “neither creates an appearance of impropriety ... nor constitutes prohibited participation in a political activity or a political gathering” (id.). We also advised that a judge may permit a newly elected state legislator to use a ceremonial courtroom for their swearing-in ceremony, even where the election campaign was “a particularly contentious race with a lot of negative publicity” (Opinion 14-182 [suggesting “it is even more important to act to promote civility and collegiality” after a “contentious or divisive” campaign]).
Now, approaching the question from the other side, we likewise conclude that permitting an appropriate public official to administer an oath of office to a judge neither creates an appearance of impropriety nor constitutes prohibited participation in political activity.
Therefore, we see no ethical bar to allowing the Corporation Counsel to administer the oath of office to a judge.
2. Disqualification in Matters Involving a Friend’s Subordinates
For purposes of the analysis, we will assume (without deciding) that the judge has determined that their overall social and professional relationship with the Corporation Counsel, including the judge’s choice of having the Corporation Counsel administer the judge’s oath of office, would require disclosure or disqualification under Opinion 11-125 if the Corporation Counsel were to appear before the judge personally.
Where a judge has a social relationship with an attorney that requires disqualification or disclosure when that attorney appears, “this obligation does not automatically extend” to the attorney’s law office colleagues, including subordinates and direct reports (Opinion 16-114; accord e.g. Opinions 15-45 [ex-friend’s colleagues or subordinates in public law office]; 14-90 [friend’s subordinates in legal services organization]; 13-59 [friend’s law firm colleagues]; 12-85[B] [friend’s law firm colleagues]).
Thus, we advised that a judge’s long-time, close personal relationship with the deputy director of a legal service organization, without more, does not require disqualification or disclosure when the deputy director’s subordinates appear before the judge (see Opinion 14-90). We noted that the deputy director did not make court appearances but instead directly supervised the staff attorneys who appear before the judge (id.). Notably, we applied the same standard when a judge’s former friend was seeking a role in a government law office that regularly appears before the judge, but the judge did not yet know whether the former friend would be “the head of the agency” or “a staff attorney” (Opinion 15-45 fn 1). There, too, we said the judge’s obligations with respect to their former friend “do not automatically extend to the attorney’s colleagues or subordinates in a public law office” (Opinion 15-45).
As in these prior opinions, the inquiring judge knows of no direct relationship, whether personal, social, professional, or otherwise, with any of the assistant’s corporation counsel who will appear in the judge’s court. The only new wrinkle here is that the judge’s friend, as Corporation Counsel, may be the attorney of record in all matters where the assistants corporation counsel appear.1 On these facts, we conclude the inquiring judge’s impartiality cannot “reasonably be questioned” merely because an attorney appearing before the judge directly or indirectly reports to the judge’s friend and former mentor, even if the friend’s name appears as attorney of record (cf. Opinion 15-45 [noting that the judge’s former friend might be “the head of the agency”]).2 The fact that the judge previously served as an assistant corporation counsel more than two decades ago does not affect the analysis.
Accordingly, provided the judge can be fair and impartial, the judge need not disqualify or disclose their relationship with the Corporation Counsel when other attorneys from the Corporation Counsel’s office appear before the judge.
1 We said a judge who had “both an ongoing social relationship and a prior professional relationship with the state agency’s general counsel is not required to disqualify him/herself” in matters involving the agency, where the agency was represented by the Attorney General’s office (Opinion 12-147). In that instance, however, the Attorney General – rather than the judge’s friend – was the attorney of record. We thus did not need to reach the issue presented here.
2 This of course assumes the friend has no known direct personal involvement in the case before the judge (cf. Opinion 17-92 [disqualification required where judge’s friends “have direct, hands-on involvement in all cases handled by their subordinates,” who “are not licensed attorney, but law students” who may only appear under supervision pursuant to a student practice order]).