March 12, 2009
Digest: A judge must disqualify him/herself subject to remittal when an attorney who is representing the judge’s parent’s close corporation appears in the judge’s court. Once the representation ends, and for two years thereafter, the judge must disclose that the attorney represented his/her parent’s close corporation when the attorney or a member of the attorney’s firm appears in the judge’s court. If a party asks the judge to recuse him/herself, whether to do so is within the judge’s discretion.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 08-165; 07-128; 02-56; 99-47 [Vol. XVII]).
A judge advises that prior to assuming the bench, his/her parents hired an attorney to represent their wholly owned close corporation concerning a legal matter that ultimately settled. The judge further advises that the lawyer never appeared in the judge’s court while the matter was pending. The judge indicates that he/she discloses that the attorney represented his/her parents when other members of the attorney’s law firm appear in his/her court and, at a party’s request, exercises recusal. The judge asks whether this procedure is correct in these circumstances.
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
The Committee previously has advised that a judge must disqualify him/herself subject to remittal when an attorney who is representing a member of the judge’s family appears in the judge’s court (see Opinions 08-165; 07-128; 02-56). And, for a period of two years after the representation ends, the judge must disclose that an attorney represented his/her relative when the attorney or a member of his/her firm appears in the judge’s court (see Opinion 07-128; 99-47 [Vol. XVII]). If a party asks the judge to recuse him/herself, whether to do so is within the judge’s discretion (see Opinion 07-128).
The judge also should disclose for two years after the representation ended that an attorney had represented his/her parents, and, if a party requests recusal, the judge should exercise his/her discretion in granting or denying the request.
In any case, but particularly when the judge exercises his/her discretion to decline a request for disqualification, the judge should incorporate into the record all of his/her disclosures, both the request for disqualification and the reasons therefor, and his/her reason for granting or denying the request. Although the Rules Governing Judicial Conduct mandate only that the remittal agreement be included in the record (see 22 NYCRR 100.3[F]), the Committee considers it a better practice to also include this additional information.