May 25, 1989
Topic: Period of time a judge should continue to recuse himself or herself from matters coming before the judge wherein an associate of the judge’s former law partner represents a party.
Digest: Depending on all the facts and circumstances of their prior relationship as partners, a judge should consider continued recusal from cases wherein the judge’s former partner or the former partner’s new associates represent a party, until such time as there is no appearance of impropriety.
Rules: 22 NYCRR 100.3(c)
A County Court judge asks whether a judge should recuse himself or herself from criminal or civil cases in which the judge’s former partner or the former partner’s new associates represent a party.
The judge dissolved the former two-lawyer firm upon election to County Court. The judge sold the judge’s former interest in the office building and equipment of the 20-year old partnership to the former partner, receiving a lump sum payment. There has been no business or financial connection between them for three and a half years. The judge is the sole County Court judge sitting in the county.
The judge’s former partner continues to refrain from appearing in the judge’s court in any matters. Since the dissolution of the partnership, the judge’s former partner has hired two associates who now seek to appear before the judge.
The judge now inquires if there is any ethical prohibition to presiding over matters wherein the judge’s former partner or the former partner’s new associates represent a party.
Opinion 89-31, recently issued by the Committee, concerned a set of circumstances similar to the ones raised herein. The Committee observed:
The relationship of law partners, especially in a small firm, involves not only a close professional relationship, but a personal one as well... This may be so especially in situations as here where the Court is located in a small city, or a suburban or rural area. In these circumstances it might create the appearance of impropriety should the former partner appear before the judge. Thus it is difficult for the committee to establish a precise time frame for the judge to continue recusal in these matters.
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The judge, therefore, should invoke recusal for such period of time which in his judgment, under all of the circumstances, will avoid the appearance of impropriety. Thereafter, the judge should make known to counsel the prior partnership in all cases in which the former partner appears. If any party objects, the judge should seriously consider recusal, and should invoke recusal unless the judge thinks that the objection is frivolous, in bad faith, or is wholly without merit.
These guidelines should apply also to appearances by new associates of the judge’s former partner. It should be recognized that since the judge never had a professional relationship with the former partner’s new associates, the judge may very well determine, after considering all of the relevant circumstances, and after a proper disclosure, not to invoke recusal in matters wherein the associates appear some time before the judge concludes that it is permissible to preside where the former partner personally appears.