Joint Opinion 08-171/08-174

 

December 3, 2009


Please Note: In some circumstances, the need for disclosure of a former representation may eventually diminish over time. In Opinion 10-56, the Committee discussed several factors for a judge to consider in making such a determination.


Digest:         (1) While a judge is represented by an attorney in a personal legal matter, the judge must disqualify him/herself whenever the attorney appears in the judge's court. The judge's disqualification is subject to remittal only if the judge believes that he/she can be impartial and only if the judge is willing to disclose fully that the attorney is representing the judge in a personal legal matter and the nature of the representation.


(2) While a judge is represented by an attorney in a personal legal matter, the judge must disqualify him/herself whenever another attorney who assists the judge's personal attorney in representing the judge appears in the judge’s court or when any of the judge’s personal attorney’s partners and/or associates appear in the judge’s court. The judge's disqualification is subject to remittal only if the judge believes that he/she can be impartial and only if the judge is willing to disclose fully that the appearing attorney’s partner and/or associate is representing the judge in a personal legal matter and the nature of the representation.


(3)(a) Once the judge's personal legal matter is concluded, the judge must continue to disqualify him/herself for a period of two years whenever the attorney who represented him/her, or an attorney who assisted that attorney in representing him/her, appears in the judge's court. During the same two-year period, the judge's disqualification is subject to remittal only if the judge believes that he/she can be impartial and only if the judge is willing to disclose fully the fact and nature of the representation.


(3)(b) During the same two year period, when the judge's personal attorney's partners and associates who had no involvement in the judge's representation appear, if the judge is willing to preside, he/she must fully disclose the fact and nature of the representation. If a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion.


(4)(a) When the attorney who represented the judge, or an attorney who assisted the judge's attorney in representing the judge, appears in the judge's court more than two years after the judge's personal legal matter is concluded, if the judge is willing to preside, the judge must fully disclose the fact and nature of the representation. If a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion.

 

(4)(b) If the judge's lawyer's partners and associates who had no involvement in the judge's representation appear more than two years after the judge's personal legal matter is concluded, the judge may, but is not required to, disclose that the representation occurred; and whether to exercise recusal is solely within the judge’s discretion.


Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1);100.3(F); Opinions 08-10; 06-22;00-89(Vol. XIX); 97-135 (Vol. XVI);97-90(Vol. XVI);96-50(Vol. XIV); 94-33(Vol. XII); 93-61 (Vol. XI); 93-09 (Vol. X);92-54 Vol. IX); 91-10 (Vol. VII); 90-120(Vol. VI); 90-56 (Vol. V); and, 88-153 (Vol. III).


Opinion:


         Two judges ask about their disclosure/recusal obligations when their personal attorney's partners or associates appear in their court.


         A judge must avoid impropriety and its appearance in all the judge's activities (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge's impartiality might reasonably be questioned (see 22 NYCRR100.3[E]).


         The Committee previously has issued a number of opinions addressing a judge's obligations when his/her personal attorney or his/her personal attorney's partners or associates appear in the judge's court while the representation continues, and after it is concluded. Because the Committee realizes it is difficult and time consuming for a judge to review all the existing opinions to determine how to proceed in his/her individual case, the Committee takes this opportunity to consolidate and harmonize those existing opinions to help ensure that judges understand their obligations in these circumstances.


         While an attorney is representing a judge, the judge must disqualify him/herself whenever the attorney appears in the judge's court (see 22 NYCRR 100.3[E][1]). While the judge's disqualification is subject to remittal, if the judge does not wish to disclose information about his/her personal legal matter, he/she need not do so, but instead must exercise recusal. Otherwise, if the judge is willing to preside and believes he/she can be impartial, the judge must disclose on the record the fact that the attorney currently is representing him/her in a personal legal matter, and must fully disclose the nature of the representation to the parties who have appeared and not defaulted and to their lawyers (see 22 NYCRR 100.3[F]). Only with full disclosure can the parties and their counsel intelligently determine whether to ask the judge to exercise recusal. If, without the judge's participation, the parties and their lawyers thereafter agree that the judge should not be disqualified, and they incorporate the agreement in the record of the proceeding, the judge may preside (see id.). Nevertheless, it is the Committee’s view that under these circumstances, a judge should seriously consider recusal.1


         Similarly, while the judge's representation continues, the same rule applies when another attorney who is assisting the judge's personal attorney in representing the judge appears, and as well when the judge's personal attorney's partners or associates appear.


         Once the judge's personal legal matter is concluded and all legal fees have been paid, the judge must continue to disqualify him/herself for a period of two years whenever the attorney who represented the judge, or an attorney who assisted the judge's personal attorney in representing the judge, appears in the judge's court. Again, although the judge's disqualification is subject to remittal, if the judge does not wish to disclose fully information about the representation, the judge cannot preside. However, if the judge is willing to preside, remittal is available after the judge follows the procedures set forth in 22 NYCRR 100.3(F).


         Once the representation is concluded and all legal fees have been paid, and the judge's personal attorney's partners and/or associates who had no involvement in the judge's representation appear in the judge’s court, if the judge is willing to preside, he/she must fully disclose the fact and nature of the representation. If a party objects to the judge's continued participation in the case, the judge must consider all the facts and circumstances of the representation and the objection, and exercise his/her discretion in determining whether disqualification is warranted. In the absence of full disclosure, the judge must disqualify him/herself from the case and exercise recusal.


         Should the attorney who represented the judge, or an attorney who assisted the judge's attorney in representing the judge, appear in the judge's court more than two years after the judge's personal legal matter is concluded and all legal fees have been paid, and the judge is willing to preside, the judge must fully disclose the fact and nature of the representation. If a party objects to the judge's continued participation, the judge should seriously consider the objection and should also seriously consider exercising recusal, unless the objection is frivolous and wholly without merit.


 “The judge should consider all relevant factors to determine if disqualification is the proper course, including the nature of the instant proceeding, the nature of the prior representation by the attorney, and its frequency and duration, the length of time since the last representation, the amount of work done for the judge by the attorney and the amount of the fee, whether the representation was routine or technical or involved the morality of the judge’s conduct, whether there exists a social relationship between the judge and the judge’s former attorney, and whether there are any special circumstances creating a likely appearance of impropriety” (see Opinion 92-54 [Vol. IX]).

 

In the absence of full disclosure, the judge must disqualify him/herself from the case and exercise recusal.


         If the judge's lawyer's partners and associates who were not involved in the judge's representation appear more than two years after the judge's personal legal matter is concluded and all legal fees have been paid, disclosure is within the judge's discretion, as is the decision to grant an application for the judge's disqualification.


         To the extent that the Committee's prior opinions addressing 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, are inconsistent with this opinion, they are overruled, including the following: 08-10; 06-22; 00-89(Vol. XIX); 97-135 (Vol. XVI);97-90(Vol. XVI);96-50(Vol. XIV); 94-33 (Vol. XII); 93-61 (Vol. XI); 93-09 (Vol. X); 92-54 Vol. IX); 91-10 (Vol. VII); 90-120 (Vol. VI); 90-56 (Vol. V); and, 88-153 (Vol. III). 


         In prior opinions, the Committee has advised that remittal of disqualification is not permissible in any case where a party who appears is unrepresented (see, e.g., Joint Opinion 07-114/07-120; Opinion 07-73; 07-28).