Opinion: 01-06

April 19, 2001

Digest:  (1) Subject to remittal, a Surrogate judge should, for a period of two-years after leaving a law firm, disqualify himself or herself whenever the law firm appears before the judge on behalf of a party. After two-years, the judge should disclose the former relationship and consider recusal if a party objects. (2) The judge should not preside over any matter where charitable foundations on whose board of directors the judge sits are parties.

Rule:  22 NYCRR 100.3(E)(1); 100.3(F);
           Opinions 95-31 (Vol. XIII); 94-05 (Vol. XII);
           91-120 (Vol. VIII); 88-84 (Vol. II).


            A Surrogate judge formerly practiced law with a firm that frequently represents parties in matters before the Surrogate's court. Those parties include three charitable foundations for which the judge serves as a board member. The judge asks whether recusal is required in contested or uncontested matters whenever a party, including any of the three charitable foundations, is represented by the judge's former law firm.

            Pursuant to section 100.3(E)(1) of the Rules Governing Judicial Conduct, a judge must disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In applying that provision, the Committee has previously stated that a Surrogate judge should, for a period of two years after the judge has left a law firm, disqualify himself or herself when a partner or an associate of that former law firm represents a party in a case before the judge's court. Disqualification on that basis is subject to remittal by all parties who appear. 100.3(F). Opinion 94-05 (Vol. XII). Disqualification is required in both contested and uncontested matters because in either instance the closeness in time together with the closeness in the former relationship could give rise to an appearance of impropriety. Upon expiration of the two-year period, the judge should disclose the former relationship with an attorney and, if any party objects, seriously consider recusal. If the judge reasonably believes the objection is frivolous, made in bad faith, or is without merit, recusal is not required. Opinion 91-120 (VIII).

            Moreover, so long as the judge remains a member of the board of any of the foundations, he or she may not preside over any matter in which the foundation is a party, regardless of who represents the foundation. Opinions 95-31 (Vol. XIII); 88-84 (Vol. II).