June 9, 2006
Digest: A part-time judge, who is permitted to practice law and who had a professional, ad hoc working relationship with an attorney who had been representing a client of the judge in a criminal matter, should disclose the relationship and recuse in matters involving that attorney for a two-year period following the apparent conclusion of the matter, subject to remittal of disqualification.
Rules: 22 NYCRR 100.3(E)(1); 100.3(F); Opinions 01-71 (Vol. XX); 95-05 (Vol. XIII); 94-71 (Vol. XII); 91-120 (Vol. VIII).
A part-time judge who is allowed to practice law (but whose practice does not include criminal matters) retained criminal defense representation on behalf of a client who was to appear before a grand jury. The defense counsel kept the judge informed of the proceeding involving the client and it appears (but cannot be confirmed) that it is no longer pending before the grand jury and the client is no longer a target of the investigation. The last communication from the attorney to the judge involving the client took place on August 30, 2004. The judge did not receive any referral fee, but continues to represent the client in unrelated matters.
The judge now asks if he/she must disqualify him/herself in proceedings involving this attorney, and if so, for what period of time.
In Opinion 91-120 (Vol. VIII), this Committee determined that a judge who had a frequent, ad hoc professional relationship with an attorney should recuse him/herself for a two-year period after the business relationship ends, subject to remittal of disqualification. See 22 NYCRR 100.3(E)(1); 100.3(F). The two-year term has been specifically utilized in other representation circumstances addressed since that opinion was issued. See, e.g. Opinions 01-71 (Vol. XX); 95-05 (Vol. XIII); 94-71 (Vol. XII).
Although the relationship in the instant inquiry was not “frequent,” the circumstances are otherwise similar to the situation addressed in Opinion 91-120. Therefore, it is this Committee’s opinion that the judge should disqualify him/herself in any matter involving the attorney to whom this matter was referred for a period of two years from the apparent conclusion of the matter. In this case, the Committee notes that the relationship concluded when the last communication was received, i.e., August 30, 2004, and therefore the judge should continue to disclose the relationship and disqualify him/herself in matters involving this attorney, subject to remittal of disqualification, until August 30, 2006.