June 13, 2013
Digest: A part-time judge who has adopted reasonable procedures to avoid presiding over matters in which current and recent former clients of his/her law firm appear, and then learns that he/she has nonetheless inadvertently presided over a matter in which one party was a recent former client, has no obligation to disclose that the defendant is a former client of the judge’s law firm or to take any further action.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 97-85 (Vol XVI); 89-13 (Vol. III).
A part-time lawyer judge who presides over many criminal matters states he/she has developed a system to prompt defendants to disclose at the outset whether they currently are or previously were clients of the judge’s law firm. The judge recently accepted a guilty plea from a criminal defendant who, the judge subsequently learned, had been a client of the judge’s law firm1 (on an unrelated matter) within the past two years.2 The judge asks what action, if any, he/she must take under these facts.
A judge must always avoid even the appearance of impropriety (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]). Thus, 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 should disqualify him/herself, subject to remittal, where a party appearing in the judge’s court had been a client of the judge’s law firm and the representation ended fewer than two years before the appearance date (see Opinion 97-85 [Vol XVI]). In the Committee’s view, this procedure is required because the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) and the judge’s timely disqualification prevents any possible appearance of impropriety (see Opinion 89-13 [Vol. III]).
Although the inquiring judge, despite reasonable efforts to avoid doing so, presided in a case involving a former client of his/her law firm, the Committee concludes the inquiring judge has no obligation to disclose after the fact that the defendant is a former client of the judge’s law firm or to take any other action.
The inquiring judge has implemented a reasonable procedure designed to avoid conflicts involving a current or former client of the judge’s law firm. Naturally, no procedure is foolproof. The system the judge has adopted, although reasonable, relies on others to inform the judge of the pertinent information where, as here, the judge was not personally involved in the representation. Had the judge personally represented the defendant, either the judge or the defendant might have remembered and remarked on it. Here, by contrast, other lawyers in the judge’s firm, working in a different office location, handled the defendant’s case.
The Rules Governing Judicial Conduct are rules of reason; they do not ordinarily require judges to sua sponte re-open proceedings that have already been adjudicated. Under the circumstances presented, where the judge was entirely unaware of the prior representation, and the defendant pleaded guilty to a lesser charge with the prosecutor’s consent, it appears the parties suffered no actual or apparent prejudice due to the defendant’s prior relationship with the judge’s law firm. Accordingly, the judge has no ethical obligation to disclose that the defendant is a former client of the judge’s law firm or to take any further action.
1 The judge states that he/she was not personally involved in the representation, which was handled exclusively by lawyers in a different office of the firm.
2 The judge notes that his/her system was in operation at the time; in another matter that evening, the system provided the judge with the necessary information that enabled the judge to disqualify him/herself from a case involving a different former client of the judge’s law firm.