Judicial Ethics Advisory Opinion Summaries. March April 2016

Transcription

1 Judicial Ethics Advisory Opinion Summaries March April 2016 California Formal Advisory Opinion In deciding whether to attend a political fund-raising or endorsement event, judges must consider whether their presence may create the appearance that they are endorsing or fund-raising for a non-judicial candidate or political organization. When attending, the types of activities that would be likely to create the appearance of political bias include being introduced as a judge, receiving an award, or being the guest of honor at the event. Judges should not make speeches for a political organization or non-judicial candidate is prohibited, but may speak about the law, the legal system, or the administration of justice at a political event so long as the activity does not create the appearance of political bias and is otherwise consistent with the code; if the event is the purpose of endorsement or fund-raising for a non-judicial candidate or political party, judges should consider whether making a speech on even permissible topics would create the appearance of speaking on behalf of, or lending the prestige of office to, the candidate or political organization. Candidates for judicial office may attend, be introduced, and speak on their own behalf or on behalf of another candidate for judicial office at a political event so long as the candidate does not commit to a position on an issue that is likely to come before the courts and does not endorse or solicit funds for a candidate for non-judicial office or a political organization. Judges should assess the likelihood that their attendance will be known to the promoters of the event and make reasonable efforts to ensure their title will not be used to promote the event. California Oral Advisory Summary A presiding judge does not have the authority to disqualify the entire local bench. California Oral Advice Summary A superior court judge who is sitting as a pro tem appellate justice while under active consideration by the governor for appointment to the court of appeal should disqualify herself from a habeas corpus matter in which the governor s decision to affirm, modify, or reverse the parole board is at issue. Florida Advisory Opinion A judge may appear in a documentary concerning a case that the judge prosecuted as an assistant state attorney and that has reached final disposition where she will not be identified as a current judge. Illinois Advisory Opinion When requested, a judge may privately recommend lawyers to family members and close friends.

2 Louisiana Advisory Opinion 271 (2016) A judicial officer may provide a link on his personal web-site or social media page to his judicial campaign web-site or social media page if the campaign page is not used solely for fund solicitation and if the link is to the home page, not directly to the contribution page, and does not mention campaign contributions. Maryland Advisory Opinion Request A judicial candidate may not host a reception for other judicial candidates seeking election to or retention on another court. Maryland Advisory Opinion Request A judge may not act as an election judge. Massachusetts Letter Opinion A former judge may practice in the federal courts within 6 months of retirement. Massachusetts Letter Opinion A judge who is an amateur photographer may have her photos included in exhibitions in which the items on display may be purchased for a fixed price, typically divided between the artist and the exhibitor, and be identified by name as long as there is no reference to her judicial title and her participation in exhibitions does not become so extensive that she would be conducting a business. A third party selling the work is not required to withhold from the judge the identities of purchasers, but, if a known purchaser appears in front the judge as a lawyer or party, the judge will have to consider whether there may be grounds for disqualification or disclosure. The judge may donate photographs or license photographic images to a law-related non-profit organization to exhibit and offer for sale and the judge may be identified by name, but there should be no reference to her status as a judge and the judge should not be informed of the identities of purchasers; if the judge becomes aware that a purchaser of her photographs is (or is scheduled to be) before her, she will have to consider whether there may be grounds for disqualification or disclosure. Massachusetts Letter Opinion A retired judge may not accept appointments to serve as a master within the probate and family court within the first 6 months following her retirement unless his service is pro bono. Nebraska Advisory Opinion A judge may serve on a task force formed by a board of county commissioners to make recommendations to the board about the method of appointing guardian ad litems in juvenile court proceedings. 2

3 Nebraska Advisory Opinion A judge may not disqualify himself from cases involving the adoption of children by same-sex married couples based on his strongly held religious beliefs with regard to a married couple s sexual orientation. Nevada Advisory Opinion JE A judge may accept, consider, and act on documents received from the division of parole and probation that are not served on the state or the defense. New York Advisory Opinion A judge may not review the professional services of her divorce lawyer on an on-line ratings service that displays individual reviews directly to the public even if her review is anonymous and does not refer to her judicial status. New York Advisory Opinion A judge may permit a not-for-profit educational organization to use his name and honorific in a list of volunteers in documents circulated within the organization if other volunteers are also listed with their titles and the documents will not be used for fundraising. New York Advisory Opinion Provided the judge can be fair and impartial, a judge is not required to disclose or disqualify merely because she responded to a confidential request from a judicial appointments committee for comments on the character, ability, integrity, and temperament of an attorney who regularly appears before her. New York Advisory Opinion A judge is disqualified from cases involving an attorney when the judge had encouraged another attorney to file a complaint against that attorney and said she would personally follow through to ensure that a disciplinary complaint was filed. New York Advisory Opinion A judge must report to the State Commission on Judicial Conduct another judge s attempts to use the prestige of judicial office to influence the outcome of a family member s criminal case. New York Advisory Opinion A judge may speak at an academic conference on international, federal, and state approaches to human rights issues. New York Advisory Opinion A judge may accept compensation for legal or fiduciary services he performed before 3

4 assuming the bench. A judge is disqualified, subject to remittal, from matters involving his former partners and associates for 2 years after the relationship completely ends and must assess any ongoing social relationship with his former partners and associates that may extend the disqualification period. During the disqualification period, the judge may not appoint her former partners or associates to fiduciary positions. A judge is disqualified, subject to remittal, from matters involving his former clients for 2 years after the relationship completely ends. New York Advisory Opinion A part-time judge may serve on a bar association s attorney grievance committee. New York Advisory Opinion A judge whose pistol permit was suspended after the police filed a domestic incident report about the judge and his spouse may, in proceedings to obtain reinstatement of his pistol permit, argue that carrying a pistol is necessary for his personal safety/ because he serves as a judge who routinely presides over arraignments, sentencing, and other emotionally charged proceedings alone and at night. New York Advisory Opinion When a judge, after receiving a second-hand report of a casually overheard and possibly privileged conversation, has jumped to the unsupported conclusion that the attorney was encouraging his client to engage in intimidation, threats, or coercion, the judge need not take any disciplinary action but must disqualify herself from the case without revealing the reason for her disqualification. New York Joint Advisory Opinion / / When a judge has no direct personal knowledge about purported misconduct of another judge or attorney, he has particularly wide discretion to make a threshold decision whether there is a substantial likelihood of a substantial violation under all the circumstances he currently knows. If a judge believes the information he has is mere rumor, gossip, or innuendo, or is otherwise not sufficiently reliable or credible to warrant further consideration, the substantial likelihood prong is not met, and the judge is not required to take any action at all. If the judge concludes, in his sole discretion, that the substantial likelihood prong is met, he must then consider whether the substantial violation prong is met and, if so, must also determine what action is appropriate under the circumstances. A judge is not disqualified by rumors about a prosecutor s out-of-court conduct during the trial phase of a proceeding. New York Advisory Opinion A part-time town judge who is also executor of an estate that owns real property within the town may retain counsel and petition the town for approval of the beneficiaries requested subdivision of the property. Provided the judge can be fair and impartial, the 4

5 judge may preside when assistant town attorneys who do not participate in the town s zoning and subdivision matters appear before the judge, and disclosure is not required. New York Advisory Opinion Although a judicial candidate may not carry or pass petitions for other candidates or request signatures for other candidates, she may, to the extent legally permitted, attest as a notary public during her window period that she witnessed signatures on petitions carried or passed by another individual. New York Advisory Opinion A judge who represented a particular category of litigants in the specialized court where he now sits may not remain on the list for a former colleague s summaries, commentary, and compilations of recent cases, if this resource is unavailable to the bar or public. New York Advisory Opinion A village justice may continue as a client of a salesperson whose spouse is the village prosecutor and, unless the relationship is substantially more than an ordinary salesperson-customer relationship, may preside over cases where the salesperson s spouse appears as village prosecutor without disclosure or disqualification, provided she can remain fair and impartial. New York Advisory Opinion A judge may not be the guest speaker at a not-for-profit organization s annual dinner, when he knows that, although the dinner is modestly priced, attendees are strongly urged to upgrade to silver, gold, life, or corporate memberships and are publicly recognized for making full or partial payment during the dinner. New York Advisory Opinion Absent a court directive or ethics rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in a hearing, a court attorney referee need not take any action on learning that an attorney briefly spoke to the witness about subpoenaed materials during the recess. New York Advisory Opinion A judge who learns an attorney appearing before him made a charitable donation to honor the judge s deceased relative, as suggested by the relative s published obituary, has no duty to disclose the donation or recuse himself in a matter involving the attorney if the obituary did not mention the judge s judicial status and neither the judge nor his family used or circulated the obituary to solicit funds. New York Advisory Opinion

6 When a judge offered selected attorneys the opportunity to purchase tickets to a local sporting event, the judge must disclose the transaction for 3 months when an attorney took advantage of the offer appears before her. New York Advisory Opinion A judge s association may hold its annual conference at a hotel resort and casino owned by a sovereign Native American nation. New York Advisory Opinion The New York Advisory Committee on Judicial Ethics cannot suspend the Rules Governing Judicial Conduct or issue legal opinions interpreting the state and federal constitutions and re-affirmed its prior opinions advising that a judge may not take part in certain public activities regarding redistricting. New York Advisory Opinion A town justice must report substantial and troubling irregularities in his court to an appropriate administrative or supervising judge. The judge may report the apparent misconduct to other authorities but is not required to. New York Advisory Opinion A judge may write to the director of a federally funded medical facility expressing appreciation for care provided to her deceased parent and may use judicial stationery marked personal and unofficial. The judge may not send copies to federal legislators. New York Advisory Opinion Whether a full-time judge may serve in the U.S. Army Reserve Judge Advocate General Corps is a legal question the judicial ethics advisory committee may not address. New York Advisory Opinion A judge who presides in a treatment court may serve on a legislator s advisory committee on drug abuse, subject to limitations. New York Advisory Opinion A part-time judge must not serve as corporation counsel if she personally, or any assistant or deputy corporation counsel under her supervision, will prosecute vehicle and traffic law charges, or any other alleged violations of law that involve peace officers. The judge may serve as corporation counsel for a city in another county if she is completely separated from those prosecutorial responsibilities. New York Advisory Opinion Judges may consult ex parte about matters pending in their courts with court personnel who staff the city, town, and village courts resource center, and such communications 6

7 need not be disclosed. New York Advisory Opinion A newly appointed judge, who previously ran for a non-judicial elective office may donate unexpended non-judicial campaign funds to charity, provided doing so is lawful. New York Advisory Opinion A judge may permit a part-time court clerk to accept part-time clerical employment with a law firm that will no longer appear in the judge s court after hiring the court clerk. If the law firm does appear, the judge must disclose and insulate the court clerk. New York Advisory Opinion If applicable law permits judges to delegate authority to accept guilty pleas and set fines to court clerks who serve in a municipality s traffic violations bureau, it would also be ethically permissible for the judges to delegate that authority. New York Advisory Opinion A judge may order payment to a former guardian ad litem for services that pre-date the hiring of that attorney by another judge as a principal law clerk. New York Advisory Opinion A judge whose spouse is a state-wide information security officer for the state police need not disclose their relationship or disqualify herself in cases involving the state police. New York Advisory Opinion A judge may publicize her book and participate in book signing and other promotional events the publisher organizes at libraries, schools, civic organizations, or shopping centers, but, if the work is a children s book unrelated to the law, the judge may not participate in promotions that target attorneys or the legal profession. The judge may inform friends, family, or the general public of the publication of the book but may not aim at attorneys. The judge may read the book at a school, provide complimentary copies to friends, family, libraries, and members of the public, and advise, on request, where the book may be purchased. A judge who has written a children s book may permit her judicial title and a photograph of herself wearing her judicial robe to be used on the book s back cover. New York Advisory Opinion A judge may submit a written statement suggesting changes to New York s statutory scheme in lieu of appearing at a public hearing. New York Advisory Opinion

8 A newly appointed part-time judge may not continue to represent a client on cases that originated in the judge s court, were previously handled by the inquiring judge s predecessor, and were transferred to another local court only after the inquiring judge assumed the bench. New York Advisory Opinion A judge is disqualified from any case involving a former law firm if she had any direct involvement with the matter and for 2 years from the time all business and financial connections with the firm completely ended; after 2 years, disclosure is within the judge s discretion, but not required. The judge is disqualified from any case involving the co-chair of her campaign committee for 2 years following the conclusion of her campaign and must disclose the relationship after that period elapses and consider a discretionary recusal if requested. If an attorney s involvement in the judge s campaign was more than minimal, but less than the level of a campaign chair or treasurer, the judge should disclose for 2 years. The judge is not required to disclose when an attorney s name appeared on campaign committee letterhead. The judge is disqualified from cases that were pending or under investigation during her tenure as county attorney, and remittal is not available. The judge may preside over unrelated matters that were not pending or under investigation while she was county attorney even involving a particular person who was a former respondent whose previous case is unconnected with any new, current case, provided she can be fair and impartial. The judge must disclose any connection if she becomes aware of a relevant connection between a new case involving the county attorney s office and a prior case during her tenure as county attorney. A judge is not necessarily disqualified from matters involving her law clerk s former employer; during the first 2 years of her law clerk s employment, the judge must insulate the law clerk from all matters involving his former law firm and disclose his prior employment and current insulation when the firm appears. If the law clerk was personally involved in any particular matter as a private attorney, the judge must insulate the law clerk from that case and disclose the insulation; there is no expiration to this requirement. New York Advisory Opinion A judge may accept an honorarium for giving the lesson for the day at a worship service. New York Advisory Opinion A judge who presided over 2 related civil actions may preside over the losing party s subsequent malpractice action against its former counsel. New York Advisory Opinion A judge may not be a character reference for a court intern who has applied for a pistol permit. 8

9 New York Advisory Opinion A judge who is a former assistant attorney general is disqualified from all cases in which she had any personal involvement as a lawyer, either directly or in a supervisory capacity. For 2 years, the judge must disclose the former relationship in cases involving her former employer. New York Advisory Opinion A part-time judge, presiding without a jury, is disqualified, subject to remittal, if a town board member who votes on setting her salary is a necessary witness whose credibility she must evaluate. New York Advisory Opinion A judge is not required to, but may in his discretion, notify a police officer s commander when the officer does not comply with a legal mandate. New York Advisory Opinion A judge has no duty to disclose or disqualify himself from cases involving the attorney general s office, based only on media efforts to link the judge and his spouse with a person whom the attorney general is investigating. New York Advisory Opinion A family court judge whose first-degree relative has a part-time entry-level job with an agency where the county department of social services may place a child is disqualified, subject to remittal, from any cases in which the judge s relative has been personally involved but has no obligation to disqualify from other cases involving children placed at the same agency. If the judge is satisfied that the agency has an effective procedure in place to insulate her relative from any cases that may come before her, the judge may rely on that insulation and preside in cases involving the agency without disclosing the employment relationship or inquiring about the judge s relative s possible involvement in the case. New York Advisory Opinion When the new public defender preliminarily and briefly represented a judge in a disciplinary proceeding 1 year ago as a private attorney, the judge may continue to preside over matters involving assistant public defenders, provided the judge can be fair and impartial. The judge need not disclose the prior, non-substantive representation when the assistant public defenders appear. New York Advisory Opinion A judge need not disclose that her attorney spouse is currently litigating an unrelated action in another court as opposing counsel to one of the attorneys appearing before 9

10 the judge. New York Advisory Opinion A part-time city court judge who presides over arraignments and other criminal cases should not serve as part-time in-house counsel for the sheriff s office. New York Advisory Opinion A judge may not write a letter of recommendation for a family member who has a criminal case pending in another state even if he would discuss only information based on personal knowledge and would not reveal his judicial status and even if he is the only member of his family with experience as a former prosecutor, former defense attorney, and former court attorney-referee. New York Advisory Opinion A judge may participate as one of several panelists and mentors at a free luncheon for young people of a particular minority group when the event s philanthropic purposes are clear, the judge s participation will not be used for promotional purposes, and the commercial sponsor has assured the judge in writing that no commercial activity will take place at the event. New York Advisory Opinion A judge may make a donation to and accept free admission to a fund-raiser for a foundation that provides support to children of law enforcement officials through scholarship grants and individual achievement awards to fraternal, religious, and ethnic organizations. New York Advisory Opinion An appellate judge who was formerly an equity partner in a large law firm is disqualified for 2 years from appeals involving a party the judge recognizes as a current or former client of the firm, even though a different law firm is representing the client. When there are ongoing financial connections or obligations between the judge and the firm, the 2-year period commences when the financial relationship between the judge and the law firm completely ends. A judge need not refer to the firm s conflict databases to determine whether a client relationship exists. New York Advisory Opinion Subject to certain limits, a judge may enter an option/purchase agreement for his screenplay. New York Advisory Opinion A judge presiding in a large urban criminal court may write a reference for a police officer seeking to be promoted based on personal knowledge that predates the judge s 10

11 assumption of judicial office if she can easily recuse herself when the officer appears in her court. New York Advisory Opinion A judge who is a member and officer of a specialized bar association may sign the association s certificate of incorporation but may not use her formal judicial designation on the certificate of incorporation or designate her chambers as the address for the organization. New York Advisory Opinion A judge may not testify voluntarily before a disciplinary committee at the request of the subject attorney or his counsel but may do so in response to a subpoena or at the request of the disciplinary committee and may authorize the attorney to tell the disciplinary committee that it may contact the judge concerning the matter but must not provide his views on the appropriate sanction unless specifically directed to by the disciplinary committee or by subpoena. New York Advisory Opinion Provided she can be fair and impartial, a criminal court judge who presided over an ex parte search warrant application may later arraign a confidential informant who testified in support of the warrant and/or the target of the search warrant. North Dakota Advisory Opinion A judicial candidate s campaign committee may solicit reasonable contributions from a political action committee. North Dakota Advisory Opinion A judicial candidate or his campaign committee can establish social media pages in support of the candidate that allows visitors to contribute to the campaign. The candidate or the committee may invite friends to like or share the campaign page from the candidate s personal page. A sitting judge who is a candidate for the same office may pose in a judicial robe to promote his campaign. Oklahoma Advisory Opinion A judge who has been voted "Judge of the Year" by a law-related organization may accept the award and accept the offered complimentary tickets to the banquet but should not take part in the acceptance video that will be shown as part of an awards ceremony at a banquet, posted on the organization's web-site and published on YouTube.com. South Carolina Advisory Opinion A judge whose spouse is running for a local, non-partisan office may attend meet-and- 11

12 greet functions for her campaign if his title is not used, but may not post his spouse s campaign signs even if someone else obtains the landowners permission. South Carolina Advisory Opinion A judge is not disqualified from a family court case in which her spouse, an attorney, acted as a mediator. South Carolina Advisory Opinion A full-time magistrate cannot run for a political office. South Carolina Advisory Opinion A judge is not disqualified from a case in which one of the attorneys rents a building from his spouse. Utah Informal Advisory Opinion A judge may vote on-line for a presidential candidate in conjunction with a caucus meeting or by dropping off a ballot at the caucus as long as voting does not require participation in the caucus itself. Virginia Advisory Opinion A judge is not disqualified from cases in which an attorney who regularly appears before her is a party or a witness. The decision whether to recuse is a decision for the individual judge, not the chief judge. West Virginia Advisory Opinion (February 18, 2015) A family court judge who previously worked as a law clerk for a circuit judge is not disqualified from every case in which he served as a law clerk but only those in which he was personally and substantially involved, but the relationship must be disclosed in each case. West Virginia Advisory Opinion A magistrate assistant cannot serve as on a county political executive committee. West Virginia Advisory Opinion A candidate for magistrate whose step-son-in-law is the elected prosecutor cannot handle any criminal cases in her county if elected. West Virginia Advisory Opinion (October 29, 2015) Family court judges do not have to recuse themselves from cases involving an attorney who is representing the Association for the Family Case Coordinators and Family Court Secretary/Clerks but must disclose the relationship. 12

13 West Virginia Advisory Opinion (October 26, 2015) A judge who sits as a member of a juvenile drug court treatment team should recuse herself from a matter involving a juvenile that she previously represented when she had been recused from the underlying detention matter. If the judge chairs the team, a new judge should be appointed to preside over the matter, but if the judge is simply a noncritical member, another judge does not need to be appointed. West Virginia Advisory Opinion (October 27, 2015) A judge may advise a local attorney who was not a party to or lawyer in a domestic violence proceeding of a credible threat made to him by the defendant during a hearing, but the judge s disclosure should be limited to the identity of the person threatening physical harm and an account of the threats involved. West Virginia Advisory Opinion (December 21, 2015) A judge does not have to report a lawyer who may be overbilling for public defender services and has signed an agreement to self-report unless the judge finds that the lawyer overbilled and that her actions were unethical. West Virginia Advisory Opinion A judge cannot use old campaign materials as printed if the information pertaining to whether a committee has been formed or the name of the treasurer is out of date because they would not contain true and accurate information, but, if possible, the judge may use the materials if the judge could cover or remove the out-dated information. West Virginia Advisory Opinion A city councilwoman who is not currently running for office can serve as a host for a meet-and-greet social for a judicial candidate. West Virginia Advisory Opinion A judge or a judicial candidate cannot place on his campaign Facebook page videos of himself answering questions on family law issues but may talk about general procedures and report on what statutes provide as long as he is very careful to ensure that the explanations do not cross the line into legal advice or discuss pending or impending matters and if he understands that these videos are likely to generate follow-up questions that he cannot answer. West Virginia Advisory Opinion A judicial candidate can attend and do a meet and greet at a dinner/dance fund-raiser put on by her campaign committee as long as the candidate is not involved in soliciting money and does not try to find out who actually contributed to the campaign. 13

14 Wyoming Advisory Opinion A judge may serve as the president of the disciplinary committee for the Episcopal Diocese of Wyoming. Wyoming Advisory Opinion A judge should not write a character reference for a family member to a judge presiding over that family member s sentencing in a criminal proceeding in another state unless compelled. Wyoming Advisory Opinion A part-time judge may represent criminal defendants in courts other than the municipal court in which she serves. U.S. Advisory Opinion 115 (2016) A judge may not appoint the husband of a judicial colleague or a law partner of a judge s nephew to act as a special master. A judge should not hire as a judicial assistant the spouse of another judge within the same district. Nepotism prohibitions apply to the appointment and hiring of volunteer employees, such as an unpaid voluntary extern. A judge should not appoint his child to serve as defense counsel under the Criminal Justice Act, but colleagues on the court may appoint another judge s child to serve as defense counsel as long as the appointment does not constitute de facto full-time service and no other unusual circumstances create the appearance that the court is favoring the child of one of its own judges. The spouse of a bankruptcy judge may be listed on a register of mediators for the bankruptcy court when no member of the court is involved in the selection for placement on the register or in the selection of the mediator in a particular case and provided the spouse does not serve as a mediator in a case assigned to the judge. A district judge may not hire the relative of a magistrate or bankruptcy judge in the same district and vice-versa, and bankruptcy and magistrate judges within the same district may not hire the relative of another. A court employee may continue to be employed after becoming a relative of a judge of the court, but the employee should not be supervised by or her promotions dependent on the actions of the judge/relative. A chief probation officer should not make or influence any personnel decision affecting his spouse, who was a probation officer within the same office. The daughter of a federal judge should not be hired as a United States probation officer to serve the district court in which that judge sits. A chief probation officer should not hire the spouse of the deputy chief probation officer. A judge should not hire a person with whom the judge is in a serious romantic relationship. A retired federal district judge should not be appointed as a special master charged with the responsibility of resolving claims for large amounts of attorney s fees sought in a complex lawsuit. A judge may hire a law clerk who was the child of a legislative branch official if it was clear that the appointment was based on a merit selection process. A judge may respond to an inquiry from the ABA concerning a potential candidate s qualifications for appointment 14

15 to the bench based on the judge s personal observations of the candidate. A judge may respond to official inquiries concerning a person being considered for a judgeship but should not initiate communications on such topic. Opinion September 10, 2015 Digest: A judge whose first-degree relative is a part-time attorney for the county department of social services may preside in criminal cases alleging welfare fraud where the agency is the victim or complainant, provided this relative has no involvement in the case. Rule: Judiciary Law 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-06; ; (A); ; ; 05-86; 99-17; ; /97-147; ; ; 87-08; People v Moreno, 70 NY2d 403 (1987). Opinion: A judge asks whether he/she may continue to preside in welfare fraud cases where the county department of social services is the victim or complainant, now that the agency has hired the judge s first degree relative. As a part-time attorney, the relative handles matters before support magistrates, such as support petitions and violations of orders involving individuals who receive public assistance. The judge says the DA, rather than the agency s in-house attorneys, prosecutes the welfare fraud cases. 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 disqualify him/herself in several specified circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law 14) and in any other proceeding where the judge s impartiality might be reasonably questioned (see 22 NYCRR 100.3[E][1]). For example, a judge must disqualify him/herself if he/she knows that a person within the fourth degree of relationship by blood or marriage is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]). Conversely, where disqualification is not mandatory under these objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]). Clearly, a judge may not preside in a case where the judge s first degree relative acts as a lawyer (see 22 NYCRR 100.3[E][1][e]; Opinion [A] [prohibition applies if the (first degree relative) will be involved in the litigation in some way, for example, by offering input to outside trial counsel]). If this relative works for a private law firm, 15

16 the judge is also disqualified, subject to remittal, when other attorneys in that firm appear (see e.g. Opinions 99-17; ; 87-08; see also Opinion [noting this applies to all relatives within the second degree of relationship]). However, if this relative works for a public law office, in a non-supervisory capacity, the judge may preside in other cases involving the agency as long as the relative is not personally involved in the case, and the judge need not disclose his/her relative s employment relationship (see e.g. Opinions ; ; 05-86; ; ; cf. Opinion [applying the same standard when the judge s relative is a social worker for the probation department]).1 The same standard applies here, where the judge s relative is a part-time attorney for the department of social services. Thus, the judge may preside in a criminal case alleging welfare fraud where the social services agency is the victim or complainant, provided the judge s relative has no involvement with the case. 1 Opinion /97-147, which requires a judge to disclose his/her child s public sector employment and obtain the parties consent to preside, based solely on the agency s relatively small size, it is inconsistent with the Committee s many subsequent opinions. The Committee believes the current rule provides ample protections when a judge s child s public sector employer appears before the judge, regardless of the size of the office. Accordingly, Opinion / is overruled. Opinion December 3, 2015 Digest: A judge whose spouse is actively involved in the not-for-profit American Israel Public Affairs Committee may attend a non-political dinner at which the judge s spouse and other financial supporters will be recognized. Rules: 26 USC 501(c)(3)-(4); 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.5(A)(1)(g), (i); Opinions ; Opinion: The inquiring judge s spouse is actively involved in a not-for-profit organization 16

17 known as the American Israel Public Affairs Committee (AIPAC). The judge states that AIPAC is not a political action committee, and does not rate or endorse candidates for elective or appointive public office. Instead, AIPAC has federal tax-exempt status under 26 USC 501(c)(4) in support of its mission to reinforce relations between the United States and Israel and to strengthen, protect and promote U.S.-Israel relations in ways... [to] enhance the security of both nations. The judge asks if he/she may join his/her spouse for an upcoming AIPAC dinner - primarily a social event - at which financial supporters, such as his/her spouse, will be recognized. 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 sitting judge who is not in his/her window period for election or re-election may not attend political gatherings (see 22 NYCRR 100.5[A][1][g]) or purchase tickets to politically sponsored dinners or other functions, including any such function for a non-political purpose (see 22 NYCRR 100.5[A][1][i]). The term political organization includes a political party or a political club, but the definition also encompasses a group whose principal purpose... is to further the election or appointment of candidates to political office (22 NYCRR 100.0[M]). As stated in Opinion (citations and paragraph break omitted): Tax-exempt status under 26 USC 501(c)(3) tends to suggest that an organization is not engaged in partisan political activity, whereas not-for-profit entities... which are exempt under 26 USC 501(c)(4), may engage in some partisan political activity without jeopardizing their tax-exempt status. However, [t]he fact that [501(c)(4)] organizations are legally permitted to engage in some political activity does not necessarily resolve the question of whether they are political organizations under the Rules. It is also necessary to consider the organization s principal purpose as reflected in its mission and public activities. The Committee understands that AIPAC is permitted to, and does, engage in extensive political activity. However, the judge does not seek to join AIPAC or contribute to it; instead, he/she wishes to accompany his/her spouse to a social event at which the spouse and other supporters will be recognized. As AIPAC s stated purpose does not involve supporting or opposing particular candidates, the Committee concludes the event is not politically sponsored under the Rules (see 22 NYCRR 100.0[M]; 100.5[A][1][i]; cf. Opinion ). As the event itself is primarily a social event to recognize existing supporters, such as the judge s spouse, it does not appear to be a political gathering (see 22 NYCRR 100.5[A][1][g]; cf. Opinion 02-98). Accordingly, the judge may attend under these circumstances. Opinion

18 June 11, 2015 Digest: A judge who receives reliable information that a more senior judge, who has administrative or supervisory responsibilities, displayed impatient, discourteous, and undignified behavior on the bench, made unprovoked threats to alter another judge's order in the case sua sponte to suit the more senior judge's personal preferences, and repeatedly refused to consider or decide the issues before him/her, must report the more senior judge s conduct to the appropriate administrative judge. Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(1), (3)-(4), (6); 100.3(D)(1); Opinions 14-86; ; 08-99; 08-83; Joint Opinion /05-108/ Opinion: The inquiring judge states that he/she has reviewed a recording of a hearing in which a more senior judge, who has certain administrative or supervisory responsibilities, was presiding in a particular case. The inquiring judge is particularly concerned about the more senior judge's conduct, demeanor, and statements as recorded, which appear to reflect impatient, discourteous, and undignified behavior, including unprovoked threats to alter another judge s order in the case sua sponte to suit the more senior judge s personal preferences, and a repeated refusal to consider the parties request that the judge hear and decide the issue they asked him/her to decide.1 The inquiring judge asks whether reporting is mandatory. 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]). Therefore, a judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct must take appropriate action (22 NYCRR 100.3[D][1]). As explained in Opinion 14-86: The Committee has generally advised that a judge who learns of potential misconduct by another judge must determine for him/herself whether there is a substantial likelihood another judge has committed a substantial violation of the Rules. In the Committee s view, the judge who has observed or who, based on reliable information, learns about another judge s conduct, is ordinarily in the best position to determine whether such conduct constitutes a substantial violation of the Rules. If a judge concludes there is a substantial likelihood that another judge has committed a substantial violation of the Rules, the judge shall take appropriate action. There is a 18

19 wide range of appropriate actions depending on the circumstances, and it is, therefore, ordinarily left to the judge s discretion to determine what action will be appropriate. However, if the judge concludes the misconduct calls into question another judge s fitness to continue in office, then the only appropriate action is to report the other judge to the Commission on Judicial Conduct [citations omitted]. The Committee has previously noted that it cannot judge the credibility of allegations of misconduct and is not empowered to do so (Opinion , quoting Joint Opinion /05-108/05-109). There have nonetheless been several instances where conduct described in an inquiry to this Committee, if true, clearly called into question another judge s fitness to continue in office and, therefore, at the very least, warranted an investigation by the Commission (see e.g. Opinions [judge undertook legal work in connection with a matter that originated in the judge s court and over which the judge previously presided at the arraignment stage]; [after arraigning defendant and setting bail, judge personally posted bail using check drawn on judge s spouse s bank account, signed his/her spouse s name to secure defendant s release, and then drove defendant home]; [judge offered to have a police officer destroy a traffic ticket the officer issued to the inquirer s relative]). In such cases, the Committee has advised that appropriate action necessarily involves reporting the conduct to the Commission. In at least two instances, the Committee has advised that the Aappropriate action@ is, or includes, reporting certain facts or conduct to an administrative judge. For example, a judge who has reliable information from first-hand observations that another judge drove a car recklessly while intoxicated and also has substantial information that the other judge presided more than once while intoxicated must not only report the other judge to the Commission, but also to the appropriate administrative judge (see Opinion 08-83). The Committee explained that reporting the conduct to the administrative judge was necessary, under the circumstances presented, A[b]ecause the Commission=s disciplinary process ordinarily takes significant time,@ and the other judge=s alleged conduct presented Aobvious risks... during the pendency of that process@ (id.) That is, the administrative judge must be informed Aso that other appropriate action may be considered and taken in the interim,@ including, potentially, making referrals to a treatment program or seeking the guidance of the NYS Bar Association=s Lawyer Assistance Trust (id.). The Committee has also advised that a town justice who discovers evidence that certain court personnel may have engaged in misconduct that suggests the possibility of corruption within the court itself must report all the facts he/she has learned to his/her administrative judge (see Opinion 08-99). The Committee believes the conduct described in the present inquiry, if true, unambiguously satisfies the standard of Asubstantial likelihood@ of a Asubstantial violation,@ as the inquiring judge appears to have reliable information that another judge has engaged in misconduct that is clearly prohibited under the Rules (see e.g

20 NYCRR 100.3[B][1] [AA judge shall be faithful to the law and maintain professional competence in 100.3[B][3] [AA judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official 100.3[B][4] [AA judge shall perform judicial duties without bias or prejudice against or in favor of any 100.3[B][6] [AA judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.@]). The inquiring judge must therefore take appropriate action (see 22 NYCRR 100.3[D][1]). Under the specific circumstances presented, it appears the alleged misconduct has affected at least one court proceeding, and the judge who allegedly engaged in such misconduct is a more senior judge who has certain administrative or supervisory responsibilities. The alleged misconduct, if proven, clearly calls into question the more senior judge's fitness to continue in such supervisory or administrative capacity and, therefore, at the very least, warrants prompt intervention by the appropriate administrative judge (cf. Opinion 08-83). Therefore, as was the case in Opinions and 08-83, the facts in the present inquiry require immediate action to protect other litigants. Only the administrative judge will be in a position to act quickly and authoritatively to determine the extent of the problem and to consider and take appropriate steps to address the root causes as well as the effects of the alleged misconduct. 1 The facts as set forth in the inquiry do not suggest or support an interpretation that the more senior judge was merely mistaken about the law; instead, the judge=s statements created an impression that the judge was unwilling to consider the law. 20