Opinion 22-42

March 10, 2022

Digest:    A judge need not disclose nor recuse from a proceeding merely because an attorney in the matter is also the judge’s neighbor and has, in that capacity, supported a non-controversial residential zoning variance sought by the judge.

Rules:     Town Law § 267; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 21-22(A); 16-24; 10-149

Opinion:

         The inquiring full-time judge’s neighbor is a practicing attorney in a law firm which regularly appears before the judge’s court. To minimize the risk of conflicts, the judge and the neighbor intentionally do not cultivate a social relationship with each other. The judge has now retained an architect to apply for a variance from the local town zoning board of appeals for construction at the judge’s residence, and there will be public notice of a hearing and opportunity to comment on the application. Although the town’s application process does not require the applicant to seek a neighbor’s approval, the architect nonetheless took the initiative to contact the judge’s attorney neighbor. After confirming they did not object to the variance, the architect asked them to send a letter to the zoning board to that effect.¹ The judge now asks if they must disclose or recuse on matters involving the attorney neighbor and, if so, whether this is required for the entire law firm.

         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 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 in a proceeding where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specific circumstances required by rule or law.

         While this appears to be a matter of first impression, a few prior opinions offer some useful principles. Where an attorney is currently holding money in escrow for the judge, we said that the ongoing financial relationship must be disclosed when the attorney appears before the judge (see Opinion 16-24). However, we said disclosure An area variance seeks relief from the dimensional requirements of the zoning ordinance, such as when the proposed action does not meet the requirements for lot size, width, setbacks, or number and size of structures. The final determination whether to grant or deny a variance is in the discretion of the zoning board, taking into consideration the balance between the benefit to the applicant versus the detriment to the health, safety, and welfare of the neighborhood. We understand the zoning board must consider certain statutory criteria in rendering the decision (see Town Law § 267).“remains mandatory until final disposition or distribution of the escrow assets; thereafter, assuming the escrow was released without controversy, the judge has no further obligation to disclose” (id.). In essence, we concluded the judge’s impartiality could not reasonably be questioned based on a former escrow relationship that proved uncontroversial.

         In Opinion 10-149, we also carved out a narrow exception to the general rule that “a part-time lawyer judge may not represent clients before a planning board or zoning board of appeals in the same municipality where the judge presides,” for certain ministerial and uncontested matters. In particular, where the local ordinance makes obtaining an updated certificate of occupancy or building permit to buy or sell an existing property truly “ministerial in nature,” with no room for discretion, we said the judge may apply for these on behalf of clients in the village where the judge presides (id.). However, we cautioned that “if a particular application is contested, the judge must withdraw from representing the client in the matter” (id.).

         While this judge’s application for an area variance is both ongoing and non-ministerial, we note it involves a single, discrete application and, while the neighbor’s consent is not required, the neighbor apparently has no objection to it. Accordingly, provided the application remains non-controversial between the judge and the neighbor, we conclude the judge’s impartiality cannot “reasonably be questioned” on this basis when the attorney neighbor or other members of the law firm appear before the judge (22 NYCRR 100.3[E][1]). Accordingly, the judge need not make any disclosure nor offer to recuse in any matters involving the neighbor’s law firm, whether or not the neighbor is involved in the matter.

         Conversely, if the variance application results in controversy between the judge and the neighbor, we expect the judge will need to disclose and disqualify, subject to remittal (see 22 NYCRR 100.3[F]; Opinion 21-22[A] [setting forth the remittal process]). However, the judge may seek further guidance on any such specific circumstances as they may develop.

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¹ An area variance seeks relief from the dimensional requirements of the zoning ordinance, such as when the proposed action does not meet the requirements for lot size, width, setbacks, or number and size of structures. The final determination whether to grant or deny a variance is in the discretion of the zoning board, taking into consideration the balance between the benefit to the applicant versus the detriment to the health, safety, and welfare of the neighborhood. We understand the zoning board must consider certain statutory criteria in rendering the decision (see Town Law § 267).