The Judicial Council has received a request to reconsider Informal Opinion 97-7. The questions posed in that opinion were as follows:

1. May a judge have lunch or dinner with a lawyer who has a case before the judge when: a) there are no issues pending before the judge; b) motions have been filed but have not been submitted for decision; c) motions are under advisement; d) a trial is underway; or e) the case is under advisement. Does it make a difference if the attorney pays for the meal?

2. How should a judge handle situations such as CLE classes, Bar functions and other large social functions attended by judges and attorneys under the same scenarios as those involved in the first question.

The questions that have been posed distinguish between private social interactions, which will be between a judge and one attorney, and larger gatherings, which will be attended by more than several attorneys. The Council recognizes those distinctions in this opinion.

Resolution of these issues involves Canons 2B , 4A and 4D. Canon 2B states: " a judge shall not allow family, social or other relationships to influence the judge's judicial conduct or judgment." Canon 4A states: " a judge shall conduct the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties; or (4) exploit the judge's judicial position." Canon 4D(5)(c) permits a judge to accept "ordinary social hospitality" from attorneys and others.

When dealing with social activities of judges, the Code strikes a careful balance. The Code recognizes that it is not wise to isolate judges and therefore judges may accept social invitations, except when those invitations interfere with the duties of the bench, undermine public confidence in the judiciary, or create the appearance of partiality or favoritism. See Jeffrey M. Shaman et al, Judicial Conduct and Ethics, 303, 304 (2d ed. 1995).

Interaction and communication between the bench and the bar is important. This includes interaction between individual judges and individual attorneys. Although the bench and the bar perform different functions in the legal system, communication and cooperation are essential to the administration of justice. The Code of Judicial Conduct must be interpreted as allowing effective bench and bar interaction. The phrase "ordinary social hospitality," as used in the Code, must be interpreted in a manner that reflects the ongoing interaction between the bench and the bar.

The New York Advisory Committee on Judicial Ethics, in Opinion 92-22, discussed whether a judge may have lunch with local lawyers who practice before the judge. That committee stated that:

no impropriety exists with a judge having breakfast, lunch, or dinner with an attorney who practices in the judge's court, as long as no discussions of pending matters take place between the judge and the attorney, and as long as there is no appearance of impropriety. [However], during the course of a trial, on actual trial days, a judge should avoid any private social activity with the attorneys appearing before the judge for one side in a matter so as to avoid the appearance of impropriety. In other situations, the judge should exercise discretion and circumspection, depending on the circumstances, to avoid justifiable fears or complaints by lawyers or their clients.

The Council is of the opinion that the New York committee's holding is appropriate. On actual trial days, a judge should not interact privately with an attorney participating in the trial. Private interaction on trial days creates the appearance of partiality. Opposing counsel, parties, and others who might witness such interaction could reasonably question the judge's ability to be impartial. Private social interaction on actual trial days is therefore prohibited.

During the other periods mentioned in the opinion request - i.e. motions pending, issues under advisement, etc. - private interaction is not automatically prohibited. Judges have the discretion to weigh the circumstances to determine whether private social interaction is appropriate. It is not possible to foresee all possibilities and to enumerate the factors that a judge should consider. The Council simply cautions judges to avoid those situations which create reasonable and justified perceptions of partiality. For instance, a judge may choose to avoid private interaction during the period that a dispositive motion is to be argued

Judges are not restricted in any manner from participating in larger social settings such as Bar functions, CLE classes, law firm open houses, Inns of Court and other social settings attended by more than one attorney. This type of interaction helps foster communication and respect between the bench and the bar and should not be restricted.

Finally, the Council recognizes that social hospitality often includes, for example, a dining companion paying the tab for another. A judge may therefore accept a free meal from an attorney. There may be instances when a judge may not accept gratuities associated with a meal - e.g. an airline ticket for a meal in a neighboring city - but the free meal itself will be considered ordinary social hospitality.

In conclusion, the Council finds that a judge must avoid private social interactions with an attorney on actual trial days. A judge has discretion in other circumstances to determine whether other social invitations are appropriate, taking into consideration factors which would lead to reasonable and justifiable perceptions of partiality. Judges may attend larger social events at which attorneys are present, as these interactions foster the relationship between the bench and the bar. A judge must avoid gratuities that might be associated with a free meal.