The Advisory Committee on Judicial Ethics recently issued the following opinions, which are linked below.
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April 12, 2019 Broadcast
Opinion 17-28 A candidate for judicial office may not respond to a questionnaire which, when seen as a whole, can only be seen as a series of implied pledges, promises, and commitments, touching on a wide variety of closely interrelated issues that may come before the judge if elected or re-elected.
Opinion 17-161 A judge who had, as an assistant district attorney, prosecuted a case in which the DA’s office now seeks to reevaluate the conviction may, but is not required to, meet with attorneys seeking to vacate that conviction. The fact that the judge has met with the prosecutorial office that is currently re-investigating the case does not change the analysis.
Opinion 18-26 May a town or village justice allow his/her court clerks to send notice of animal abuse convictions to the Sheriff’s Department pursuant to a county animal abuse registry law?
Opinion 18-73 The Committee cannot determine whether judges have the legal authority to introduce new steps or procedures for defendants who plead guilty by mail under Vehicle and Traffic Law 1805, as this presents a strictly legal question.
Opinion 18-146 Need a judge take further steps besides objecting orally and in writing, withdrawing from participation as honoree, and requesting notification of invitees, after discovering a parade committee used his/her name, without his/her knowledge or consent, to solicit journal ads to raise funds for an upcoming holiday parade and celebration?
Opinion 18-147 On these facts, a judge may not participate in an athletic/sporting event organized and promoted solely by the local District Attorney’s office.
Opinion 18-148 A part-time justice may accept employment as a contract worker to review the court’s old files for destruction or preservation according to the Office of Court Administration’s records maintenance guidelines.
Opinion 18-149 A part-time judge whose court has a significant criminal calendar, in which most defendants are represented by assigned counsel at arraignment, may not serve as deputy administrator of the assigned counsel program.
Opinion 18-150 Must a judge report a non-attorney defendant who, on the eve of sentencing, falsely alleged that he/she knew the judge socially?
Opinion 18-152 A part-time town justice may simultaneously serve as the appointed treasurer of the town’s taxpayer-supported fire district, where the judge has no involvement in the budgeting process but instead pays invoices after the fire commissioners’ approval.
Opinion 18-153 A part-time lawyer judge may not represent a private client before the board of assessment review in the same town where the judge presides, but the judge’s partners or associates may undertake the representation provided there is no other ethical impediment and the judge neither participates in the representation nor shares in the fee.
Opinion 18-155 May a judge’s court attorney serve on a community board, engage in charitable fund-raising, or serve as a member of the county committee of a political party? If the court attorney first becomes a Unified Court System employee part-way through the year, how should the $500 aggregate limit on political contributions during “any calendar year” be applied?
Opinion 18-156 (1) A town justice need not object to the town’s video security cameras, where the cameras have no microphones or audio capabilities, do not intrude into the courtroom or otherwise improperly interfere with court operations, and do not permit monitoring inside the judge’s chambers. (2) If the town attempts to re-install a camera in the courtroom, the judge should object in writing and notify an appropriate administrative or supervising judge. (3) The judge may, if he/she chooses, petition town officials to restrict access to the video cameras and/or ask them to transfer the monitoring and control functions to court personnel.
Opinion 18-158 May a part-time town justice serve as police chief for a neighboring village, where the village police do not appear in the town court and the position is a “part-time, administrative” one?
Opinion 18-160 A full-time judge may bring an Article 81 guardianship proceeding and, if successful, serve as court-appointed guardian for his/her first-degree relative.
Opinion 18-161 May a village justice sign a statement of compliance with the village’s recently adopted policy on non-discrimination and harassment?
Opinion 18-162 May a town justice serve concurrently as a JHO?
Opinion 18-164 A judicial candidate who is part of a political party’s slate may attend a fund-raising event where the invitation says “come meet [this year’s] candidates, including our judicial slate,” without naming him/her.
Opinion 18-165 (1) A supervising judge who concludes that another judge pointed a licensed firearm at a defendant in the courtroom several years ago, in circumstances where he/she would not have been justified in using deadly physical force, must take appropriate action. (2) Where the supervising judge is satisfied that it was a one-time, isolated incident provoked by the other judge’s concerns about his/her personal safety, and the supervising judge has, in consultation with the district administrative judge, counseled the other judge orally and in writing to impress upon him/her that this conduct must never be repeated, the supervising judge need not take any further action. (3) Conversely, if the supervising judge concludes, in his/her sole discretion, that the measures he/she has already taken are inadequate and the incident still raises serious questions about the judge’s fitness to continue in office that must be investigated by the Commission on Judicial Conduct, the judge must report the conduct to the Commission.
Opinion 18-166 May a full-time judge serve on the board of directors of the not-for-profit Association for Children with Learning Disabilities (ACLD), an organization that does not accept referrals from the courts or regularly engage in litigation in any court?
January 16, 2019 Broadcast
Opinion 18-117 (1) Once a judicial candidate’s total remaining unexpended campaign funds are deemed de minimis, the candidate may (a) use these funds to purchase two judicial robes and/or (b) donate the balance to a not-for-profit entity that operates a childcare program at the courthouse for children of litigants in that court, with instructions that the funds be used for that purpose. (2) Judicial candidates who, after the conclusion of their window period, wish to donate their de minimis unexpended campaign funds to an entity other than those specifically referenced in one of our published opinions should write to the Advisory Committee on Judicial Ethics for guidance.
Opinion 18-118 Where a full-time judge was formerly an equity partner in a large law firm, and will receive life-long annual retirement benefits from the firm, but those retirement benefits are effectively “fixed” on a particular date rather than tied to the firm’s ongoing profits: (1) the judge is permanently disqualified, without the possibility of remittal, from all cases in which the judge had any personal involvement as a lawyer; (2) the judge is disqualified, subject to remittal, from all cases involving the law firm as long as he/she continues to receive retirement benefits from the firm; (3) the judge need not consult the firm’s conflict databases to determine whether a litigant is a current or past client of the law firm; (4) the judge is disqualified, subject to remittal, from all cases involving litigants the judge recognizes as current clients of the firm as long as he/she continues to receive retirement benefits from the firm; (5) for two years from the date the retirement benefits are effectively “fixed,” the judge is disqualified, subject to remittal, from all cases involving litigants the judge recognizes as past clients of the law firm.
Opinion 18-120 A full-time judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings, but may not participate in discussions with their retained counsel, as that constitutes the prohibited practice of law. To avoid even the appearance of impropriety, the judge must not attend meetings with counsel.
Opinion 18-121/18-122/18-123 (1) During the applicable window period, a judicial candidate generally may purchase campaign advertisements at a picnic organized by a labor union or a political party, subject to the fair value rule, even if the advertisements are labeled as “sponsorships.” (2) Where purchase of any level of sponsorship at the picnic will result in the identical advertisement (a mere listing of the candidate’s name in a brochure), the candidate may only purchase the least expensive level of sponsorship. (3) Where the picnic is sponsored by a political organization and the advertising opportunities are bundled together with tickets to the event, the judicial candidate must also comply with the limitations on price and number of tickets. (4) Where different levels of sponsorships reflect distinctly different levels of advertising visibility at the picnic, the candidate may purchase a mid-range sponsorship package resulting in mid-level visibility and one-time recognition by the master of ceremonies, provided the candidate decides his/her campaign will get fair value for the expense.
Opinion 18-124 A town justice, on behalf of the justice court, may accept a testamentary bequest so-ordered by the surrogate’s court to hold a holiday party at the courthouse. The court may invite lawyers to attend the party by posting notices with the bar association and/or at the courthouse.
Opinion 18-126 (1) A full-time judge may not consent to an interview that will be posted exclusively on a private law firm’s website. On learning his/her interview has nonetheless been posted on a law firm’s website, the judge must instruct the firm to remove the post. (2) A judge may not subscribe to a law firm’s blog, even using a personal email address.
Opinion 18-127 May a full-time judge attend and participate in an out-of-state conference of tribal judges and allow one of the tribal courts to underwrite his/her travel, lodging, and registration fees?
Opinion 18-128 May a full-time judge with relevant personal knowledge provide a factual affidavit attesting to the “bona fide good faith marriage” of a long-time friend to his/her immigrant spouse who seeks permanent residency?
Opinion 18-129 A part-time lawyer judge who serves as an accessible magistrate must not accept appointment as attorney for the child in a case where he/she previously served as the arraigning judge but is not otherwise ethically barred from accepting appointments as attorney for the child in cases that originate in the youth part.
Opinion 18-130 If the criteria of 22 NYCRR 36.1(b)(2)(I) are met, a full-time judge may allow a part-time judge to serve as a court-appointed guardian, and the part-time judge may so serve.
Opinion 18-131 A town justice who had a decades-long career in the town’s police department and retired as Assistant Chief of Police shortly before assuming judicial office (1) must not preside in cases where the arrests or summonses were issued during his/her former employment but (2) may adjudicate new matters involving the police department provided the judge had no involvement in the matter and the judge can be fair and impartial.
Opinion 18-132 A full-time judge who presides in criminal cases may participate in an interview with a not-for-profit entity retained by the county legislature to make recommendations concerning jail overcrowding, subject to generally applicable limitations on judicial speech and conduct.
Opinion 18-133 A judge may accept a prize resulting from his/her purchase of a winning raffle ticket at a charity event.
Opinion 18-134 A judge may not participate in an interview with a former juror who wishes to write a book about a case over which the judge presided, where related proceedings remain pending or impending.
Opinion 18-135 May a judge submit a character reference letter on behalf of a long-time friend who has been charged with a federal crime?
Opinion 18-136 A village justice with no direct or independent knowledge of alleged misconduct by a court officer has no obligation to investigate or take any action.
Opinion 18-137 A part-time judge may represent a judge who presides in a different court before the Commission on Judicial Conduct.
Opinion 18-138 (1) A judge with personal knowledge of relevant facts may testify as a fact witness in an attorney disciplinary proceeding, either voluntarily or pursuant to a subpoena. (2) The judge may provide a written factual statement at the request of the attorney’s lawyer, but its admissibility is a legal question.
Opinion 18-139 (1) Where a town justice has filed a tax certiorari case in Supreme Court challenging the valuation of his/her property in the town and the town attorney is defending the town in Supreme Court: (a) while the tax certiorari proceeding is pending, the judge is disqualified from all matters in which the town attorney appears or in which the town itself is a party; (b) this disqualification is subject to remittal consistent with prior opinions; (c) the disqualification ends when the tax certiorari case ends. (2) We decline to answer legal questions and/or questions about a co-judge’s conduct.
Opinion 18-140 What are a judge’s obligations on learning that a non-attorney may have drafted legal memoranda for an attorney?
Opinion 18-141 A part-time judge is not disqualified when a relative (other than a spouse) of a town board member or the town supervisor, who are involved in setting the judge’s salary, appears as a witness or prosecutor, but is disqualified when the town supervisor’s child or grandchild appears as a party.
Opinion 18-142 May a judge be involved in the selection and appointment process for his/her co-judge, by, for example, meeting with the nonjudicial appointing authority and advisory committee to discuss prospective appointees; providing “fact-based opinions regarding” prospective appointees; and recommending or opposing specific individuals for the appointment?
Opinion 18-144 A full-time judge may participate in a task force primarily concerned with issues of fact and policy connected to public health and safety if the task force is sponsored by a not-for-profit organization, and is not itself a governmental committee or commission or other governmental position.
Opinion 18-145 A part-time judge may serve as a volunteer judge for a Peer Court in the judge’s county, subject to certain restrictions.
January 9, 2019 Broadcast
Opinion 18-76 A part-time judge (1) may not serve as a county fire investigator for the same county where he/she presides but (2) may serve as a volunteer instructor at a regional police academy sponsored by a police organization in a neighboring county, where the students are police recruits who will not commence work until after they complete the training.
Opinion 18-77 A part-time judge may maintain concurrent employment as the chief financial officer/treasurer for an airport authority, where his/her employment duties include oversight of accounting and financial affairs, information technology services, purchasing and procurement and do not involve fund-raising or law enforcement functions.
Opinion 18-79 Where a judge discovers, after completing a hearing but before issuing the decision, that he/she had previously been disqualified in that same case solely because, at that time, the two-year disqualification period for former clients had not yet elapsed: (1) the judge may continue to preside and may dispose of the case, provided he/she can be fair and impartial; and (2) disclosure of the circumstances is entirely discretionary, but suggested.
Opinion 18-83 A new court attorney-referee, who served as principal law clerk to a judge in a specialized part, (1) may not hear cases on which he/she worked as a law clerk but (2) may hear new cases referred by that judge immediately on being hired.
Opinion 18-84 A judge may not preside where a pending motion was prepared by a law firm representing the judge and his/her family in various litigated and transactional matters, even though the client has substituted new counsel. Remittal of the judge’s disqualification is not possible where a party is self-represented.
Opinion 18-87 May a judge preside in a matter involving the half-sibling of his/her great-niece/great-nephew?
Opinion 18-90 (1) A judge may be on the board of a non-profit ambulance corporation seeking to create an ambulance district, but must resign if one is created. (2) As a board member, the judge: (a) must not partake in the corporation’s program about a proposed ambulance district; (b) may attend the event as an observer; and (c) may be publicly identified as a board member during the event, with other board members, and may be identified as a judge if similar titles identify other members.
Opinion 18-91 May a judge accept a “[man/woman] of the year” award from a fraternal organization at the entity’s annual dinner? How can the judge determine whether or not it is a fund-raiser?
Opinion 18-92 May a town justice permit the court’s bailiff to serve also as the town code enforcement officer?
Opinion 18-93 A full-time judge who developed a bar exam study aid and makes it available on an online app store may (1) associate his/her name with the app itself; (2) mention his/her judicial status in an online bio; (3) speak with law school administrators and students about their interest in obtaining the app; and (4) accept income from online sales of the app, subject to reporting requirements.
Opinion 18-96 A judicial candidate must not use campaign contributions to purchase new clothes for his/her election campaign.
Opinion 18-97 May a judge accept an invitation to speak at the International Lions of Judah Conference?
Opinion 18-98 On learning that his/her name and photograph were used to promote a church fund-raiser, a judge objected orally and in writing; the event was subsequently canceled. Need the judge take any further action?
Opinion 18-99 A judge was inadvertently exposed to an ex parte communication concerning a case. He/she terminated the communication as quickly as possible, discouraged further contact, and promptly disclosed the information to counsel at arraignment. The judge believes he/she can be fair and impartial. Need the judge take any further action?
Opinion 18-100 A judge who appoints CASA to provide information on cases pending before the court may not serve as a member of CASA’s advisory board.
Opinion 18-101 Justice court websites may not include extensive information promoting a DA’s traffic diversion program, where the proposed language explains the program’s goals and purported benefits to participants; provides detailed application instructions; and states that the program is intended to improve prosecutorial efficiency. However, a justice court website may include a link to the DA’s website as a convenience to defendant motorists.
Opinion 18-102 Assuming he/she can be fair and impartial, a newly elected judge may preside in cases of a lawyer who (a) formerly served on the executive committee of the judge’s local political party providing social media and website help to the party’s entire slate of candidates and (b) is an acquaintance who does not socialize privately with the judge but only interacts with him/her as parents of very young children during play dates and birthday parties. On these facts, neither disclosure nor disqualification is required.
Opinion 18-103 Where a judge resides on a street owned by a golf course and has an ongoing financial relationship with other residents and the golf course to pay for street maintenance and repair costs, the judge is disqualified, subject to remittal: (1) in all cases involving the golf course, for as long as the judge resides on the street or maintains the financial relationship with the golf course and (2) in all cases involving the neighbors who share in street maintenance, for as long as they maintain this financial relationship. The judge’s obligation ends once the business/financial relationship completely terminates. As always, remittal is not available if any party is appearing without counsel.
Opinion 18-104 A judge may preside in a custody case and a neglect proceeding involving one family, even where the neglect petition alleges one parent made a false report about the other parent’s conduct in open court before the inquiring judge, if the judge concludes he/she can be fair and impartial in each case.
Opinion 18-105 A Supreme Court candidate seeking a political party’s nomination may circulate a petition for the party’s slate of “uncommitted” judicial delegates, where none of the delegates on the petition is publicly committed to support any Supreme Court candidate but must make clear that his/her endorsement of such delegates is for the purpose of furthering his/her own candidacy.
Opinion 18-106 A full time court attorney-referee (1) may not teach yoga or meditation classes for a for-profit yoga studio, even if neither the studio nor the referee will benefit financially, but (2) may teach such classes for a not-for-profit organization and may use social media to publicize them.
Opinion 18-107 May a judge accept an invitation from the US State Department, on behalf of an overseas embassy, to participate in a program designed to promote the integration of women belonging to a certain religious group in the overseas host country and also to promote gender-equality and women’s rights?
Opinion 18-108 A sitting judge may permit a political party to include his/her name and likeness on a web page that merely lists elected officials who are registered members of the party, but must advise the party not to include any political commentary on this web page, including statements of the party’s principles, political slogans, or solicitations for funds or volunteers.
Opinion 18-109 (1) A full-time judge need not report on his/her annual statement of financial disclosure his/her theoretical involvement with a company the judge believed was completely dissolved and/or abandoned before he/she assumed judicial office, even though it is still listed as “active” on the NYS Department of Corporations website, where (a) the judge has never received any compensation or seen any evidence of business or other activity by the company, (b) the founder assured the judge that the company was never funded, never engaged in any business activity, was abandoned years ago and was thought to be dissolved, and (c) the founder has agreed that the judge should be deemed to have resigned from any theoretical involvement with the company several years ago nunc pro tunc. (2) On these facts, the judge should ask the company’s founder in writing to formally dissolve the apparently abandoned company; once the judge has made this request, the judge has no further ethical obligation.
Opinion 18-110 A city court judge may attend the mayor’s free anti-violence event for youth as an audience member with no speaking role.
Opinion 18-111 Where a judge was properly presiding in multiple criminal cases involving a particular defendant and has no conflict relating to counsel in the matter, the judge may review and approve defense counsel’s 18-B vouchers for work done on these cases prior to the judge’s recusal.
Opinion 18-112 Does a judge have any disciplinary obligations on learning that another judge presides in matters involving a lawyer with whom he/she is friendly and formerly shared office space?
Opinion 18-113 (1) A judge who concludes his/her social relationship with an assistant public defender requires disclosure or disqualification may nonetheless preside in cases where a defendant is represented by the Public Defender or other assistant public defenders in the same office, provided the judge can be fair and impartial. (2) Where an assistant public defender is associated with a part-time judge's law firm, the judge (a) must prohibit that assistant public defender from appearing before any judge of the court in which he/she presides but (b) may preside in cases where a defendant is represented by the Office of the Public Defender or other assistant public defenders in the same office, provided the judge can be fair and impartial.
Opinion 18-114 A court may create and distribute a list of attorneys who are on the assigned counsel panel and are willing to represent litigants on a sliding fee scale, where the list contains a disclaimer that the court and its staff are not recommending any attorney.
Opinion 18-115 A judge may provide a letter to both sides in an ongoing proceeding which includes an excerpt from the transcript indicating that a particular issue has been resolved with no finding of medical abuse or neglect.
Opinion 18-116 Where a judicial candidate loaned his/her personal funds to the campaign, and that loan is now legally deemed a contribution, the candidate may include his/her contribution in the calculations when returning unexpended campaign funds pro rata to the candidate and to all campaign contributors after the window period ends. Thus, if the candidate’s personal loan was the campaign’s sole funding source, he/she may return all the funds entirely to him/herself as the sole contributor.
October 31, 2018 Broadcast
Opinion 17-139 Digest: (1) Where a slate advertisement makes direct or indirect pledges or promises on behalf of the slate which are unrelated to the faithful and impartial performance of adjudicative duties, the judicial candidate must not consent to their inclusion unless the advertisement makes clear that these statements reflect only the position of the candidates for non-judicial office. (2) Judicial candidates may state their subjective view of their qualifications relative to an opponent’s but must ensure the supporting statements are truthful and not misleading. (3) A non-incumbent judicial candidate must be careful not to imply he/she is an incumbent and, thus, must use words such as “for” or “elect” rather than merely stating his/her name and the position sought.
Opinion 18-31 Digest: A new Surrogate’s Court judge who sold his/her cabinet of wills to an attorney for a one-time payment: (1) may not preside in any cases involving the purchased wills and (2) is disqualified, subject to remittal, in all other cases involving the attorney for two years following the payment for the files. During the two-year disqualification period, the judge may not preside in any uncontested cases involving the attorney who purchased the wills, as remittal would not be possible.
Opinion 18-34 Digest: A full-time quasi-judicial official may not appear on a private law firm’s podcast.
Opinion 18-35 Digest: (1) A judicial candidate may not permit another person to purchase a $2,000 ticket to a political event and donate it to his/her campaign but may permit his/her campaign committee to request admission for $250 even though others must pay $2,000. (2) A judge’s obligation to disqualify him/herself from matters involving an attorney who has offered to host a single fund-raiser for the judge does not commence until invitations to the fund-raiser have been sent out. Once the invitations have been sent, the judge is disqualified, subject to remittal, from all matters involving the attorney and his/her partners and associates, during the election campaign. This obligation ends on Election Day.
Opinion 18-39 Digest: A full-time judge may serve on the board of trustees of a not-for-profit firefighters museum, and his/her judicial title may appear on the entity’s letterhead if similar titles appear with other board members. He/she may not use the prestige of judicial office to raise funds or solicit members.
Opinion 18-43 Digest: (1) A judge is not disqualified merely because a litigant’s lawyer sent a complaint to the Commission on Judicial Conduct and copied the judge, if the Commission itself has not issued a formal written complaint, and the judge decides he/she can remain fair and impartial. (2) Where the complaint was sent to the judge ex parte, but all disputed information on the merits is on the record and known to counsel and parties, the judge need not disclose the ex parte letter if he/she is confident he/she can decide the case impartially without considering it.
Opinion 18-47 Digest: A full-time judge may participate in a free community performance of The Vagina Monologues by reading short factual/introductory paragraphs. However, if the judge participates in any question-and-answer session with the audience, he/she must abide by all applicable limitations on judicial speech and conduct.
Opinion 18-49 Digest: Whether a judge is authorized to act on certain declarations of delinquency from the probation department raises primarily legal questions beyond the Committee’s jurisdiction. However, a judge who makes a good-faith legal determination concerning his/her legal authority to act on these submissions necessarily acts ethically, even if the decision is reversed on appeal.
Opinion 18-62 Digest: A judge may preside in cases where a judicial colleague’s former temporary part-time law clerk appears, provided he/she can be fair and impartial. Disclosure is not required. Under the circumstances, the judge also need not insulate his/her principal court attorney from cases involving the former law clerk, even though the court attorney provided supervision and guidance.
Opinion 18-63 Digest: Where a judge has completed all post-election requirements to wind down and terminate his/her campaign, he/she may subsequently return to the sender an unopened envelope addressed to the judge’s now defunct campaign committee. The judge may include a letter on campaign letterhead or personal letterhead and signed personally by the judge.
Opinion 18-65 Digest: Where a town justice’s caseload includes a variety of cases involving the casino in his/her town, the judge (1) may accept routine perks such as “free play and food comps” from the local casino, provided the judge knows such perks are offered to all similarly situated patrons and the casino is not presently an active participant in a hearing or trial before the judge; but (2) must not accept the local casino’s invitation to attend lavish, expensive, or exclusive events.
Opinion 18-66 Digest: Under these circumstances, the inquiring judge has full discretion to take, or not take, any action in response to a co-judge’s conduct.
Opinion 18-70 Digest: Subject to the fair value rule, a candidate for elective judicial office may use campaign funds to attend a charitable event during the post-election window period and purchase a full-page congratulatory journal advertisement in furtherance of his/her campaign. That the candidate is a trustee of the organization does not render this expenditure impermissible.
Opinion 18-71 May a support magistrate continue to serve as an appointed trustee on his/her local board of education?
Opinion 18-72 Digest: A judge may not speak about gun laws at a politically sponsored gun policy forum.
August 7, 2018 Broadcast
Opinion 14-48 Note Added: On reviewing the opinion, the Advisory Committee realized that its third sentence could be misunderstood. Accordingly, we have changed the phrase “a volunteer position” to “this volunteer position,” effective September 17, 2018. (The change affects appointments made on or after the effective date. Cf. Opinion 16-101.)
Opinion 18-23/18-56 Digest: (1) A County Court judge whose full-time court attorney is also a town justice within the same county must insulate the court attorney from every matter that touches on an incident over which the court attorney presided as a town court justice, even if it was a completely separate case. The insulation must also be disclosed on the record to all parties and their counsel, and, since disclosure is mandated here in lieu of outright disqualification, the County Court judge must recuse if any party appears without counsel. (2) A town justice who is a full-time law clerk to a superior court judge may preside over criminal matters returned to the originating court, provided he/she was insulated from such matters as a law clerk.
Opinion 18-28 Digest: (1) The judiciary has a strong interest in bringing to light possible repeated or systemic perjury or corruption on the part of institutional witnesses which, if unaddressed by appropriate authorities, could adversely affect the judicial process and undermine public confidence in the judiciary. (2) Thus, a judge, any time in his/her sole discretion, may forward published decisions that appear to involve corrupt or perjured police officers to an appropriate investigative authority, including a police department's Inspector General. Such conduct is not impermissible merely because the Inspector General requested them. (3) Absent a legal duty to comply with the Inspector General's request, a judge may, in his/her sole discretion, decline to respond.
Opinion 18-30 Digest: A judge whose first-degree relative is a part-time dispatcher with the sheriff’s department: (1) is not automatically disqualified from presiding over cases involving the sheriff’s department and need not affirmatively ask if his/her relative served as dispatcher; (2) should instruct the relative to advise the judge if he/she is likely to become a witness or otherwise appear in the judge’s court but otherwise discourage any discussion of the relative’s work as a dispatcher; and (3) is disqualified from a case, without the possibility of remittal, if he/she learns the relative was the dispatcher on the case and could be called as a witness.
Opinion 18-32 Digest: A judge is disqualified, subject to remittal, when an attorney who represents his/her first-degree relative in a tax certiorari matter appears before the judge. After the representation has concluded, the judge must disclose the relationship to all parties and their counsel for a two-year period. After the two-year period has elapsed, neither disclosure nor disqualification is required.
Opinion 18-41 Digest: Judges and court clerks may not attend a training program sponsored by the county Ignition Interlock Monitor, where the program will address post-conviction sentencing compliance enforcement, the faculty expressly excludes defense perspectives, and the defense bar has not been invited to attend the program. Addendum: After this inquiry was decided, the organizers invited the Public Defender to participate on the faculty panel. In our view, the Public Defender’s participation here will help ensure balance and minimize the risk that the program will be seen as a one-sided, law enforcement program. Accordingly, judges and their court clerks may attend.
Opinion 18-44(A) Digest: A judge need not recuse him/herself from matters involving a credit union in which the judge is a member and account holder.
Opinion 18-44(B) Digest: A judge may not sell items at a not-for-profit organization’s concession stand at a sporting event but may participate in food preparation and other behind-the-scenes activities related to operating the concession stand.
Opinion 18-44(C) Digest: A part-time judge may volunteer with a not-for-profit sports booster club by serving as an officer or director and/or by assisting the organization in planning fund-raising but (1) must not personally solicit funds, (2) must not permit the use of the prestige of judicial office for fund-raising, and (3) must not permit his/her name to appear as the author or signatory on any fund-raising letter or as spokesperson in other solicitations.
Opinion 18-46 Digest: Where a full-time judge and his/her former law firm have an ongoing financial relationship after the judge assumes the bench, the judge is disqualified, subject to remittal, when a client or former client of the firm appears before the judge. The obligation continues until two years after that relationship completely ends, including return of any distributed capital to the judge. After the two-year period, the decision of whether to disclose or recuse is confined solely to the judge’s discretion, after considering all relevant factors.
Opinion 18-50 Digest: A part-time judge may not simultaneously serve as an assistant county attorney, where his/her specific responsibilities involve representation of the district attorney’s office, the public defender’s office and the sheriff’s department, all of whom regularly appear in the judge’s court.
Opinion 18-58 Digest: (1) A judge may continue to preside in a case after reporting one of the attorneys to a bar association’s lawyer assistance committee, provided the judge can be fair and impartial. (2) A judge who receives information indicating a substantial likelihood that an attorney has substantially violated the requirement of competence under the Rules of Professional Conduct must take appropriate action. What action is appropriate under the circumstances is ordinarily left to the judge’s discretion. However, if the judge determines the attorney’s condition is egregious and seriously calls into question the attorney’s fitness as a lawyer, the attorney’s condition must be reported to the grievance committee. (3) Even if the judge concludes that reporting to the attorney grievance committee is mandatory under the circumstances, the judge may wait until after the case is over before making the report in order to avoid the need for immediate disqualification in all matters involving the attorney.
Opinion 18-64 May a judge attend his/her former law firm’s lavish private anniversary dinner for current and former employees, where the firm and its lawyers do not appear before the judge?
Opinion 18-68 Digest: Subject to the fair value rule, a judicial candidate who has only de minimis remaining unexpended campaign funds may use such funds to attend legal education conferences to enhance his/her judicial competence.
Opinion 18-74 Digest: When an administrative judge learns that a full-time judge, in his/her capacity as a parent, has provided legal advice to other parents and impermissibly commented on pending litigation beyond the bounds of the judge’s own direct, personal interest in his/her minor child’s education, the administrative judge (1) must take appropriate action but (2) has full discretion to determine what action is appropriate under the circumstances.
Opinion 18-78 May a magistrates’ association issue a resolution supporting or opposing changes in the law concerning a local judge’s ability to set bail in various misdemeanor cases? If so, is it also ethically permissible to send the resolution to local legislators and/or the press?
Opinion 18-85 May a town justice preside over a criminal matter involving the town highway superintendent, where the town supervisor (as complainant) has given sworn statements to the police against the highway superintendent and may be called as a witness in the criminal case?
Opinion 18-86 May a judge, who is a resident and taxpayer in a particular town, preside in a criminal matter involving a defendant’s alleged conduct at a zoning board meeting, once the defendant has filed a notice of claim against the town for damages arising from the same incident?
Opinion 18-88 Digest: A judge whose second-degree relative formerly served as the County Sheriff must disqualify him/herself from all matters pending in the agency during his/her relative’s tenure.
July 25, 2018 Broadcast
Opinion 17-163/18-03/18-21 Digest: Subject to certain limitations, a full-time judge may, without compensation, (1) participate in an interview for a commercially produced television documentary series concerning a case he/she prosecuted over a decade ago, provided the case has completely terminated and no related proceedings are pending or impending; (2) appear occasionally on a commercially produced news program hosted by his/her first-degree relative, to share family-friendly jokes or riddles; and (3) appear on a commercially produced news segment in honor of the achievements of individuals who share a particular racial, ethnic, or cultural background or heritage. In each instance, the judge need not conceal his/her identity as a judge or his/her participation in the program but should not personally promote the program to the public at large.
Opinion 18-20 Digest: Subject to any required administrative approvals, a court attorney-referee may, without compensation, independently prepare and produce a noncommercial educational video providing legal information concerning the requirements and procedures for entitlement programs such as Medicare or Medicaid. The referee must not refer to his/her quasi-judicial office in the video and must abide by all applicable limitations on judicial speech and conduct, including the prohibitions on offering legal advice, advocating particular strategies, and promoting private interests.
Opinion 18-24 Digest: A judge need not take any action against an attorney who was the defendant in an uncontested action for annulment based on fraud, where the attorney’s admissions do not suggest the attorney engaged in illegal or unethical conduct.
Opinion 18-27 Digest: A judge whose second-degree relative is the First Deputy District Attorney may preside in criminal cases if he/she is satisfied that his/her relative is completely insulated from any involvement in evaluation, supervision or oversight of any matter that may be assigned to the judge.
Opinion 18-29 Digest: A judge with personal knowledge that an attorney has made perjurious statements in an affirmation must report the attorney to the appropriate attorney disciplinary committee.
Opinion 18-33 May a judge preside over matters involving attorneys who work for the same not-for-profit legal services firm as the judge’s spouse?
Opinion 18-36 Digest: A judge may promote diversity in courtroom participation by including a statement in his/her part rules encouraging litigators to give their knowledgeable junior colleagues more speaking and leadership roles in his/her courtroom.
Opinion 18-37 Digest: A judge who learns that a litigant or attorney in a case before him/her was formerly his/her law clerk's client in an unrelated legal malpractice action may continue to preside in the case, assuming he/she can be fair and impartial, and disclosure is not required. Absent factors creating an appearance of impropriety, the judge need not insulate the law clerk.
Opinion 18-38 Digest: Absent any factors that would create an appearance of impropriety, a judge who has taken over a case on another judge’s retirement due to age may initiate ex parte communications with the retired judge concerning that case, and may discuss legal and factual issues with him/her. The judge need not disclose such communications to the parties or their counsel.
Opinion 18-42 Digest: (1) When an attorney prepares a last will and testament for a judge, and thereafter merely stores the executed original in a safe or safe deposit box pursuant to the attorney’s customary practice, the judge may treat the representation as concluded once all legal work is completed and all fees are fully paid. (2) Where the representation involved simple reciprocal last wills and testaments for the judge and his/her spouse, and four years have elapsed since the representation concluded, the judge may preside in matters involving the attorney and his/her associates as long as he/she can be fair and impartial. Disclosure is left entirely to the judge’s discretion.
Opinion 18-51 Digest: (1) On notification from an arresting agency that a defendant requires immediate arraignment, is it ethically permissible for the judge to “call attorneys from a list provided by the county 18B program to inquire if the attorney is willing to appear on behalf of the defendant?” (2) If so, may the judge then preside over the arraignment once the defendant and the defense attorney are present? (3) Must notice be given to the District Attorney of an immediate arraignment and, if so, may the judge proceed with the arraignment if the prosecutor declines to appear or is unavailable? (4) Does a judge’s effort to effectuate a criminal defendant’s right to counsel at arraignment (or at any other time where the defendant’s civil liberties are impacted) automatically create an impermissible appearance of partiality or otherwise disqualify the judge from presiding in the case? (5) May the judge preside over an arraignment if a “good faith effort” is made to find counsel but no attorney is available? (6) May the judge refuse to proceed with an arraignment if a defendant is not represented by counsel during the arraignment?
Opinion 18-52 May a part-time village justice who is also a full-time college professor teach a college course in a correctional facility in another county?
Opinion 18-54 Digest: Where a not-for-profit entity provides detailed biographies of both directors on a website, the listing of the judge's name and the heading of the judge's biography may include the judge's judicial title if the listing and heading of the other director's biography includes his/her comparable title.
Opinion 18-55 Digest: A judge who hears Mental Hygiene Law cases in which hospitals regularly appear as petitioners may participate in a hospital’s “Nurse for a Day” program, in a unit that does not appear before the judge, but must (1) refrain from discussing court-related issues or pending cases and (2) instruct the hospital not to refer to the judge’s judicial status in any publicity concerning the event. Thereafter, for three months, the judge must disclose his/her involvement in all matters involving the hospital. In matters where all parties have, through counsel, provided written blanket “waivers” acknowledging the judge’s participation in the “Nurse for a Day” program, the disclosure requirement is deemed satisfied.
Opinion 18-59 May a judge be interviewed by a news station about an alternatives to incarceration program?
Opinion 18-69 Digest: Subject to compliance with all applicable rules and statutes, a judicial candidate may permit a member of his/her campaign committee to manage a private GoFundMe account to raise contributions for the campaign, provided (1) the candidate is insulated from knowing who contributed and (2) such contributions are properly reported by the campaign treasurer.
Opinion 18-75 Digest: Where a part-time attorney judge shares office space with the owner of an abstract company who performs administrative tasks for the judge in lieu of rent, the judge need not prohibit him/her from accepting employment as the part-time secretary to the county public defender, but must be careful to avoid any discussion of public defender’s cases with him/her. The judge may continue to preside in matters in which the public defender’s office appears, provided the judge can be fair and impartial.
Opinion 18-80 Digest: (1) A town justice who has a business and financial relationship with an attorney is disqualified, subject to remittal, in matters involving him/her while the relationship is ongoing and for two years after it completely terminates. (2) A town justice need not prohibit an attorney from appearing before other judges of the town court, where the judge and the attorney maintain separate law practices and have completely severed the links between them that previously created an appearance that they were associated in the practice of law.
Opinion 18-81 Digest: A part-time town justice may not accept a part-time counsel position in which he/she would be responsible for improving the delivery of legal services to indigent clients in the judge’s county and would report to the administrator of the county’s assigned counsel program.
Opinion 18-95 Digest: A judicial candidate may not answer a political party’s questionnaire designed to elicit express and implied commitments that (a) are unrelated to the impartial performance of judicial duties and/or (b) would require him/her to engage in activities prohibited by the Rules Governing Judicial Conduct.
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