March 9, 2006
NOTE: Please consult Joint Opinion 08-171/08-174 before relying on this opinion. To the extent that this opinion is inconsistent with Joint Opinion 08-171/08-174 regarding a judge's disclosure/recusal obligations when his/her personal attorney or his/her personal attorney's partners and associates appear in the judge's court, it is overruled.
Digest: Whether a judge must disclose or exercise recusal, when attorneys who are members of a firm to which the personal attorney of the judge and the judge’s family is “counsel” appear before him/her, depends on the nature of the “counsel” relationship to the firm.
Rules: 22 NYCRR 100.2(A); 100.3(E)(1); 100.3(F); Opinions 03-10; 00-89 (Vol. XIX); 99-146 (Vol. XVIII); 99-67 (Vol. XVIII); 99-47 (Vol. XVII); 96-50 (Vol. XIV); 95-35 (Vol. XIII); 93-61 (Vol. XI); 92-54 (Vol. IX).
A judge advises the Committee that he/she has consistently exercised recusal when an attorney who was the judge’s campaign manager ten years ago, and who, during the ensuing ten years, has performed legal services for the judge and the judge’s family, has represented a party appearing before the judge. The judge currently has no work pending with the attorney, but the attorney does hold copies of the judge’s will and his/her spouse’s will. Most recently, the attorney handled the admission of the will of the judge’s relative’s for probate. Since that work was completed, the attorney became “counsel” to a law firm. The judge, therefore, asks the following questions about disclosure and recusal: (1) Is the judge required to disclose the judge’s relationship with the lawyer in all cases involving the law firm, or only in cases where the attorney is involved; (2) Is the judge required to exercise recusal in all cases involving the law firm, or only in cases where the attorney is involved; and (3) If either disclosure or recusal is required, for what period of time?
Pursuant to the Rules Governing Judicial Conduct, a judge must avoid both impropriety and the appearance of impropriety, and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary 22 NYCRR 100.2(A). In particular, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). The judge has already decided that he/she will exercise recusal whenever the attorney appears before him/her. In prior opinions, this Committee has advised that, while an attorney represents a judge or the judge’s spouse or other close relative in a personal legal matter, and for a period of two years after such representation ends, a judge must exercise recusal in any case involving the attorney. Opinions 00-89; 99-67 (Vol. XVIII); 99-47 (Vol. XVII); 96-50 (Vol. XIV); 93-61 (Vol. XI); 92-54 (Vol. IX). Here, the judge, the judge’s family, and the attorney have had an on-going relationship, including the attorney’s continuing role holding the wills of the judge and his/her spouse, and the natural expectation that the attorney may handle their estates. In the Committee’s view, therefore, the judge’s decision to exercise recusal when the attorney appears before him/her has clearly been prudent.
Whether the judge must also exercise recusal when other attorneys who are members of the firm to which the attorney is “counsel” appear before him/her depends on the nature of the “counsel” relationship. In Opinion 95-35 (Vol. XIII), this Committee advised that where a judge’s spouse is “counsel” to a law firm, whether the judge must exercise recusal when members of the law firm appear before the judge “depends on the facts of the relationship between the judge’s spouse and the firm. If it is a continuing counsel relationship, evidenced, for example, by a shared letterhead and other indicia, rather than merely a retainer interest in occasional, discrete, separate cases, recusal is required.” If, however, a firm’s employment of a judge’s relative is “on a part-time of counsel basis,” with compensation only for matters actually handled, neither disclosure nor recusal is required. Opinions 03-10; 99-146 (Vol. XVIII). The Committee believes the same principles apply here, where the judge’s former campaign manager and personal attorney is “counsel” to a law firm. If, therefore, the attorney’s relationship with the firm is of the kind set forth in Opinion 95-35 (Vol. XIII), the judge must exercise recusal when other members of the firm appear before him/her. Such recusal, however, is subject to disclosure and remittal pursuant to section 100.3(F) of the Rules Governing Judicial Conduct.
The appropriate duration for recusal, when the attorney appears and when other firm members appear, is two years after the attorney completes the last work performed for the judge, his/her spouse, or other close relative. Opinions 99-67 (Vol. XVIII); 92-54 (Vol. IX). The judge, therefore, should exercise recusal for two years after the conclusion of the proceeding to admit the will of the judge’s relative for probate.
Thereafter, the judge should consider whether the attorney should continue to hold the wills of the judge and the judge’s spouse, and whether the attorney will handle the judge’s and the judge’s spouse’s estates, in determining whether he/she should exercise recusal.