December 28, 2010
This responds to your inquiry (10-145) asking whether you must disqualify yourself when a certain law firm appears in your court. You advise that you will assume the position of President of the New York State Association of Supreme Court Justices (Association) in January 2011 and will serve a one year term. You further advise that a partner at a large law firm in New York City provides pro bono “of counsel” services to the Association. While the partner has never appeared in your court and assures you that he/she will not do so during your term as President of the Association, his/her firm represents clients in two cases before you and will likely have more matters before you during your term.
A judge must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). In Opinion 94-23 (Vol. XII), the Committee advised that individual members of a board of judges need not recuse themselves from matters in which members of a law firm representing the board appear (see Opinion 94-23 [Vol. XII]). However, if the law firm were to represent the board members individually, then those judges must recuse themselves from matters in which the firm appears (see id.).
While the pro bono counsel to the Association does not represent you individually, in your role as President you will have a unique relationship with him/her that may appear to be more personal to you than to other members of the Association. Nevertheless, because you advise that he/she has not appeared before you in the past and assures you that he/she will not appear before you during your term as President of the Association, you need not disqualify yourself or disclose your relationship with him/her when other members of his/her law firm appear before you.
I have enclosed Opinion 94-23 for your convenience.
Very truly yours,
George D. Marlow
Appellate Division, First Dept (Ret.)