October 31, 1991
Digest: A judge who had a frequent, professional, ad hoc working relationship with one of the attorneys appearing before the judge, should recuse himself or herself for about two years after the relationship ends, unless all parties consent to the judge’s presiding.
Rules: 22 NYCRR §§ 100.1, 100.2.
A judge inquires whether a required period of time must pass before which the judge should hear cases handled by an attorney with whom the judge had a frequent ad hoc professional, working relationship before the election to the bench. The judge, during the practice of law, had occasionally worked with other attorneys on behalf of the same client, or had accepted a client referral from another attorney. The judge asks whether or for how long the judge must disclose the relationship and, if a party objects, whether recusal is required, when one of those attorneys appears in the judge’s court.
Working as co-counsel or accepting referrals is not uncommon among practicing attorneys. Nevertheless, the co-counsel and referral relationship may give the appearance of impropriety when one of the attorneys later ascends to the bench.
In Opinion 88-153, Vol. III, this Committee found that a judge should be disqualified where the judge had previously been represented in a personal injury action by an attorney who later appeared before the judge, for as long as the judge felt that he or she could not be impartial, perhaps using the two-year period, set forth in 22 NYCRR 16.1 of the Rules of the Chief Judge, as a guide. In Opinion 89-31, Vol. III, the Committee decided that a judge should invoke recusal for a period of time which, in the judge’s discretion, would avoid an appearance of impropriety, when the judge’s former law partner appeared before the judge.
In Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979), the Court of Appeals stated that, where one party’s attorney was associated with the trial judge’s former law firm, “we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality.”
The judge-attorney relationship here was apparently a frequent one, and should not be ignored. The Chief Administrator’s Rules and the Code of Judicial Conduct must be construed to preserve the integrity and independence of the judiciary ( 22 NYCRR 100.1). Accordingly, the judge should invoke recusal, unless the parties waive it, for a reasonable period of time after the relationship with the attorney ends, to avoid the appearance of impropriety. The two-year period of 22 NYCRR 16.1 of the Rules of the Chief Judge seems appropriate for use as a guide.
Thereafter, the judge should divulge the prior professional relationship in cases where the attorney appears, and if any party objects, the judge should seriously consider recusal, and should recuse himself or herself unless the judge reasonably believes the objection is frivolous, in bad faith or wholly without merit.