March 16, 2016
Digest: (1) An appellate judge who was formerly an equity partner in a large law firm is disqualified for two years from hearing appeals involving a party the judge recognizes as a current or former client of the law firm, even though a different law firm is representing the client. (2) Where there are ongoing financial connections or obligations between the judge and the firm, the two-year period commences from the date on which the financial relationship between the judge and the law firm completely ends. (3) A judge need not refer to the firm’s conflict databases to determine whether a client relationship exists.
Rules: Judiciary Law § 14; 22 NYCRR pt 100, preamble; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i)-(ii); 100.3(E)(1)(c); 100.3(F) Opinions 15-162; 15-63; 15-51; 13-64; 13-54; 11-125; 08-133; 03-64; 01-71; 00-67; 98-29; 97-85; 92-01; 89-13; People v Moreno, 70 NY2d 403 (1987).
An appellate judge who was previously an equity partner in a large international law firm (1000+ lawyers) seeks guidance on recusal from cases involving former or current clients of the firm. The judge is currently awaiting certain periodic distributions for work done prior to the judge’s resignation from the firm. The judge states there are thousands of clients in the firm’s databases, most of which are unknown to the judge. The judge asks whether it will be necessary to run every party through the firm to determine if a client relationship exists. If so, the judge asks whether he/she must also determine whether the firm earned revenue from that client during the judge’s employment with the firm. Finally, the judge asks whether he/she must recuse from all cases involving subsidiaries or affiliates of the law firm’s clients.
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]). A judge must also disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), or in other circumstances as required by rule or law (see e.g. Judiciary Law § 14), including when the judge knows he/she previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][b][i]), that a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter (see 22 NYCRR 100.3[E][b][ii]), or that the judge has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][c]).
The Committee has advised that a judge is disqualified, subject to remittal, where a party before the judge was a client of the judge’s law firm on another matter and the representation of that client ended less than two years before the current appearance date (see Opinions 15-51; 13-54; 08-133; 97-85; 92-01).1 This procedure is required because the judge’s impartiality might reasonably be questioned in matters involving the judge’s law firm’s recent former clients (see 22 NYCRR 100.3[E]), and the judge’s timely disqualification prevents any possible appearance of impropriety (see Opinions 13-54; 89-13).
Where, as here, there are ongoing financial connections or obligations between the judge and the firm, the relevant two-year period starts from “the date on which the financial relationship between the judge and the law firm completely ends, including return of any undistributed capital to the judge” (Opinion 15-51; see also Opinions 15-63 [the relationship is “not entirely severed until all financial obligations between the judge and the firm have completely ended, so that no further potential contingency or compensation payments ..., or other financial connections exist between the judge and law firm”]; 00-67 [judge who will be receiving compensation in concluding a business relationship with the judge’s former law partner has recusal obligations “for a period of two years from the last payment to the judge”]).
The judge is disqualified from any case on which his/her former law firm appears for this same two-year period, and further until the judge is personally satisfied that he/she can be fully fair and impartial (see e.g. Opinion 15-126 [“disqualification is required when the judge’s former law partner appears in the judge’s court as a fiduciary, attorney, litigant, or as a potential appointee of the judge, during the settled two-year period; or possibly longer, depending on the totality of the circumstances (see e.g. Opinion 11-125)”]). Accordingly, this inquiry focuses only on current or former clients of the judge’s firm who are currently being represented by other lawyers or law firms, rather than the judge’s former law firm.
As the Committee advised in Opinion 15-51, once this two-year period elapses, it is within the judge’s discretion whether to recuse him/herself if the judge or his former law firm colleagues represented a client currently before the judge as a litigant. In exercising his/her discretion in this regard, the judge should consider factors such as “the amount of time elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety” (Opinion 08-133; quoting Opinion 01-71). Where disqualification is not mandated, the judge “is the sole arbiter of recusal[,] [and t]his discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 ).
As the Committee has emphasized, the “rules governing judicial conduct are rules of reason” and should be “construed so as not to impinge on the essential independence of judges in making judicial decisions” (22 NYCRR 100, preamble). Therefore, this procedure applies only to clients the judge actually recognizes as current or former clients of the firm, or if such representation by the judge’s former firm is otherwise brought to the judge’s attention. The Committee believes it would be unduly burdensome and unnecessary for the judge to run every party appearing before him/her through the law firm’s database to determine if a client relationship exists or ever existed during the judge’s former employment with the firm. If the judge is entirely unaware that a party appearing in an appeal, or one of the party’s subsidiaries or affiliates, is also being represented in other matters by the judge’s former firm, the parties will suffer no actual, apparent, or reasonably perceived prejudice due to the client’s prior or current relationship with the judge’s former law firm (see Opinion 13-54).
In sum, during the two-year period, disqualification is required only if this judge recognizes a party as one of the firm’s current or former clients. Otherwise, the judge has no further ethical obligation and is not required to take any further action.
1 These opinions necessarily assume the judge did not previously participate as a lawyer in the case, since a judge who previously “served as a lawyer in the matter” is disqualified without the possibility of remittal (see 22 NYCRR 100.3[E][b][i]; 100.3[F]; Opinion 03-64). Of course, remittal may not be practicable in an appellate court, as disclosure of the basis for disqualification before submission or argument of the appeal may not be feasible (see Opinion 98-29).