September 16, 2010
Digest: A judge’s continuing obligation to disclose when the judge’s personal attorney appears before him/her more than two years after the representation ended depends on the particular facts and circumstances presented in each case.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Joint Opinions 08-171/08-174; 90-169/90-183 (Vol. VI); 88-120/88-125 (Vol. II).
A judge asks whether the time during which he/she must disclose that an attorney, who is appearing in his/her court, previously represented him/her in a personal legal matter is limited, so that, at some point, disclosure is no longer required.
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 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any case 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, for a period of two years after an attorney ceases to represent the judge in a personal legal matter (see Joint Opinion 08-171/08-174). Thereafter, if the judge is willing to preside, he/she must fully disclose the fact and nature of the representation (see id). If after such disclosure, a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion (cf. id.).
The Committee has not established any durational limit on a judge’s disclosure obligation when the judge’s personal attorney appears before him/her more than two years after the representation ended and all fees paid. However, in Joint Opinion 88-120/ 88-125 (Vol. ll), where the Committee considered whether a judge must disqualify him/herself when the judge’s personal attorney appears in the judge’s court, the Committee identified the following factors as relevant to disqualification:
. . . the nature of the instant proceeding, the nature of the prior representation by the attorney, as well as its frequency and duration, . . . the amount of work done for the judge by the attorney and the amount of 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.
These factors also bear on whether a judge must continue to disclose that an attorney appearing before the judge previously represented the judge more than two years earlier. Therefore, in Joint Opinion 90-169/90-183 (Vol VI), the Committee advised that where five years had passed since the last, and apparently only, time that an attorney represented a judge and the representation appeared to have involved a relatively simple matter, the judge need not continue affirmatively to disclose the connection with the attorney, if the judge believed he/she could be impartial.
However, while these factors are instructive, the Committee cannot foresee every future fact pattern. Therefore, each judge must consider not only these factors, but any other factor relevant to a particular case when deciding whether disclosure is still necessary.
Of course, the judge may consult the Advisory Committee for assistance.