September 14, 2000
Digest: If the judge believes that he or she can be impartial, the judge may preside in a case in which the attorney now appearing had previously represented the judge’s close relative. For a period of two years following the end of such representation, the judge should disclose the prior representation.
Rules: 22 NYCRR 100.3 (E)(1); 100.3(F); Opinions 92-31 (Vol. IX); 99-47 (Vol. XVII).
A judge advises the Committee that the judge's child had once been represented by an attorney in connection with an election matter which had terminated several months before the date of the inquiry, and that the judge's sibling had once been represented by another attorney in connection with a tort case which had been settled at some point shortly before the date of the inquiry. The judge inquires as to the judge's obligation to disqualify himself/herself in those cases in which one of the attorneys appears on behalf of a party.
Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires a judge to disqualify himself/herself in any proceeding in which the judge's impartiality might reasonably be questioned. Applying that principle, the Committee in Opinion 92-31 (Vol. IX) expressed the view that a judge may preside in a case where one of the attorneys had represented the judge's child two years earlier in connection with a criminal matter. In such a case, the judge could properly preside, even over a party's objection, "provided the judge believes that he or she can be impartial." But the judge should continue to disclose the attorney's past attorney-client relationship with the judge's child for a "reasonable time."
In Opinion 99-47 (Vol. XVII) the Committee stated that a judge should disclose the fact that an attorney appearing before the judge had represented the judge's spouse in a will contest. The duty of disclosure would continue "for a two year period following the conclusion of the representation." However, the Committee stated that the judge had no obligation to recuse, provided that the judge believed that he/she could be impartial.
In accordance with these opinions, the Committee concludes that the judge in this instance may preside in those cases in which a party is represented by one of the attorneys with whom one of the judge's relatives had a past attorney-client relationship, provided that the judge is confident of his/her ability to be impartial. There is a duty to make disclosure in any event, and this duty ceases two years after the termination of the prior attorney-client relationship.