The Committee on Judicial Ethics responds to written inquiries from New York state’s approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office). The committee interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and, to the extent applicable, the Code of Judicial Conduct. The committee consists of 27 current and retired judges, and is co-chaired by former associate justice George D. Marlow of the Appellate Division and Margaret Walsh, a Family Court judge and acting justice of the state Supreme Court.
Digest: (1) A part-time judge may volunteer with a departmental grievance committee’s diversion program as a mentor/monitor for an attorney referred to substance abuse treatment. The judge must disqualify him/herself in matters involving the attorney while the relationship is ongoing and for two years thereafter. During this period, disqualification is not subject to remittal unless the attorney waives confidentiality.
(2) A part-time judge may volunteer with a bar association’s lawyer assistance committee to encourage attorneys to participate in a 12-step recovery program or seek substance abuse counseling. Where the contacts are relatively minimal and occur exclusively in a group setting with other recovering attorneys, disqualification is not mandatory unless (a) the attorney asks the judge to recuse and/or (b) the judge doubts his/her ability to be fair and impartial. The judge must also advise the attorney that he/she will recuse on request, without explanation, if the attorney is uncomfortable with the judge presiding over a particular case as a result of the 12-step call.
Rules: Judiciary Law §§ 90(10); 499; 499(1); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(B); 1240.11(a)-(c); 1240.18; Opinions 15-129; 13-10; 13-09/13- 52; 11-93; 08-183/08-202/09-112; 07-170; 04-31; 02-128; 00-15; 95-49; 90-201.
1. On “proof of successful completion of the monitoring program, the Court may direct the discontinuance or resumption of the investigation, charges or proceeding, or take other appropriate action” (22 NYCRR 1240.11[b]). If the respondent attorney fails to comply or commits additional misconduct, the court may rescind the order of diversion and resume the investigation or disciplinary proceeding (id.).
2. Alcoholics Anonymous is “an international fellowship of men and women who have had a drinking problem” and “is open to anyone who wants to do something about his or her drinking problem” (www.aa.org). It is known, among other things, for its “12-step recovery program.” Narcotics Anonymous follows a similar model, focusing on “a recovery process and peer support network that are linked together” for those who wish to live a drug-free life (www.na.org). Both entities are tax-exempt non-profits and charge no dues or fees for membership.
3. The judge notes that if he/she ever agreed to “sponsor” an attorney in completing the 12-step program, “I would, of course, recuse myself” from matters involving the attorney.
4. For example, the judge does not propose to recommend a for-profit treatment provider, or to refer attorneys to an entity in which the judge has a financial interest or serves as an officer or director.
5. In so doing, the Committee trusts the judge will not “initiate, permit, or consider” any impermissible ex parte communications with the attorney about any matter before the judge (22 NYCRR 100.3[B]). The Committee assumes the attorney will only request recusal as needed for a reasonable period of time; if this proves incorrect, the judge may seek further guidance.