Opinion 15-32


June 11, 2015

 

Digest:         A judge who is a resident shareholder and proprietary lessee in a cooperative housing corporation is disqualified, subject to remittal, from tax certiorari cases involving the judge’s own building or housing corporation, but may preside in other tax certiorari cases brought by the same law firm on behalf of other clients.

 

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 12-25; 10-168; 09-138; 08-171/08-174; 03-83; People v Moreno, 70 NY2d 403 (1987).


Opinion:


         The inquiring judge, who presides in tax certiorari cases, says he/she lives, as a shareholder/ proprietary-lessee, in a multiple dwelling owned by a cooperative housing corporation. He/she is not on the corporation’s board of directors, but has nonetheless learned the corporation retained a particular law firm for its tax certiorari proceedings. The judge asks if he/she may preside in such proceedings where the law firm appears on behalf of other clients, in matters entirely unrelated to the judge’s apartment building or housing corporation.1 The judge also asks specifically for guidance on his/her obligations if the law firm submits proposed orders to the clerk’s office for the judge’s signature, where those proposed orders would confirm settlements made directly between the law firm and taxing authority in tax certiorari cases for that law firm’s unrelated clients. He/she is confident in his/her impartiality in matters involving the law firm.


         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 specific circumstances required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14) or whenever the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). If disqualification is not mandated under these two objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

 

         The Committee has advised that a judge is disqualified, subject to remittal, whenever his/her personal attorney appears or firm colleagues appear (see Joint Opinion 08-171/08-174); where the judge’s spouse’s attorney appears (see Opinion 10-168); and where an attorney appears who was selected by the judge’s spouse to represent the spouse’s employer in unrelated matters (see Opinion 03-83). Also, a part-time judge who owns/operates a business is disqualified, subject to remittal, when an attorney from a law firm that “drafted and maintains the judge’s will and estate plan and ... represents the judge’s business in collection proceedings” appears before the judge (Opinion 09-138).

 

         Here, however, it is the corporation and/or its board of directors, rather than the inquiring judge or any other shareholder, who has retained the law firm to do the building’s tax certiorari work. Indeed, nothing in the inquiry suggests the inquiring judge personally participated in the law firm’s selection or had any interaction or communications with these attorneys. Nor is it apparent under these facts the judge or another shareholder would be permitted to direct the law firm’s work in any way.


         Accordingly, the Committee believes that, based on the facts in the inquiry, the judge’s impartiality cannot reasonably be questioned in any of the law firm’s cases on matters unrelated to the judge’s cooperative housing corporation and the building where the judge resides (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). Thus, the judge “is the sole arbiter of recusal” under these facts when the law firm appears before the judge on cases unrelated to the judge’s interests, provided he/she concludes he/she can be fair and impartial (People v Moreno, 70 NY2d 403, 405 [1987]), including when the law firm submits proposed orders in such matters to the clerk's office for the judge’s signature.


         If the judge nonetheless chooses, in his/her sole discretion, to disqualify him/herself from all cases in which the law firm appears, the inquiring judge should instruct the clerk of the court not to assign any of the law firm’s cases to the judge (cf. Opinion 12-25 [a judge who is disqualified from presiding over matters where a particular attorney appears may not “so-order” stipulations entered into by that attorney]).


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         1 The judge states that he/she will not preside in any tax certiorari case involving either the judge’s own apartment building or the cooperative housing corporation that owns it (cf. 22 NYCRR 100.3[E][1][c] [judge must not preside when the judge knows he/she has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding]).