March 17, 2012
This responds to your inquiry (12-13) asking whether you are ethically obligated to disqualify yourself or disclose your prior relationship with an attorney who is currently representing the plaintiffs in a civil action brought against a pro se defendant. The plaintiffs’ attorney was a tenant in your law office more than 16 years ago. You indicate that he was not your associate or employee during his tenancy but did collaborate with your associate on cases your associate brought into the office and you might have derived a financial benefit from those cases. In your view, however, the attorney was not affiliated with your firm.
The Committee previously has advised that a judge may accept rent from an attorney, but must disqualify him/herself, subject to remittal, for the duration of the landlord/tenant relationship (see Opinions 10-203[B]; 05-130[B]). Therefore, assuming the tenant/attorney was not your associate, your obligation to disqualify yourself when the attorney appeared before you ended when the landlord/tenant relationship ended.
The Committee has construed the term “associate” in Section 100.6(B)(3) of the Rules Governing Judicial Conduct more broadly than the traditional notion of a law firm associate (see e.g. Opinion 09-100 and Opinions cited therein), including sharing office space in some circumstances (see Opinion 10-162). And, a judge must disqualify him/herself when the judge’s former associate appears in the judge’s court for a period of two years after the date on which the professional relationship ended (see Opinion 91-143 [Vol. VIII]). However, even if the attorney who rented office space from you could be considered your associate, significantly more than two years have passed since the professional relationship ended so that the relationship is sufficiently remote as to require neither disqualification nor disclosure.
Nevertheless, where disqualification is not mandatory, it remains discretionary with the judge whether to disclose or preside (see Opinion 11-127).
Enclosed, for your convenience, are Opinions 11-127, 10-162, 10-203(B); 09-100, 05-130(B); and 91-143, which address these issues.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)