April 27, 2006
Digest: A judge who sells his/her practice to another local lawyer must disclose the business relationship and recuse, subject to remittal, when the purchasing attorney appears before the judge. This disclosure and recusal requirement continues for two years following the receipt of final payment for the practice.
Rules: 22 NYCRR 100.3(E)(1), (F); 100.4(D)(1)(c); Opinions 05-130(B); 97-44 (Vol. XV).
A part-time judge in a small rural community plans to sell his/her law practice, consisting largely of wills and estates, elder law matters, routine real estate transactions and a limited number of representations relating to traffic tickets. The judge inquires whether, upon sale of the law practice to another local attorney, recusal is warranted when the purchasing attorney appears in a matter.
Section 100.4(D)(1)(c) of the Rules Governing Judicial Conduct provides, in part, that a judge should not engage in a continuing business relationship with a lawyer likely to come before the court. This does not preclude a judge from selling his/her law practice to a lawyer who practices in the judge’s court. Nevertheless, the receipt of a stream of payments in connection with that sale does constitute a continuing business relationship. Accordingly, after the sale of the practice takes place and the purchasing attorney appears before the judge, the judge should disclose the relationship and exercise recusal. The disqualification is subject to remittal. 22 NYCRR 100.3(E)(1), (F); 100.4(D)(1)(c); Opinions 05-130(B); 97-44 (Vol. XV). In Opinion 05-130(B), we concluded that such disclosure shall be made for two years after the final payment arising out of the sale. Although Opinion 05-130(B) speaks to the obligations of a full-time judge in this regard, the situation is no different in the case of a part-time judge.