May 8, 1997
A judge who is being paid money by an attorney in concluding a prior business
arrangement between them must disclose that relationship and, subject to
remittal, recuse himself or herself from presiding over cases in which
the attorney appears for a period of two years from the date of payment.
22 NYCRR 100.2, 100.4(D)(1)(c), 100.3(F);
Opinions 95-11 (Vol. XIII), 94-05 (Vol. XII),
92-01 (Vol. IX), 91-143 (Vol. VIII), 91-108
(Vol. VIII), 89-37 (Vol. III).
A full-time judge inquires about the ethical obligation to disclose payment made to the judge by an attorney in concluding a business relationship that existed between them prior to the judge's ascending the bench. The attorney appears in matters in the judge's court.
The judge had previously rented office space from the attorney and substantial remodeling was done to the premises. A portion of the remodeling cost was borne by the judge, with the specific understanding that those costs would be repaid, pro rata, if the office was vacated within a five-year period.
The parties negotiated the repayment for approximately two years before the inquirer assumed judicial office, and it has now been settled for an agreed upon sum which is to be paid imminently.
Section 100.4(D)(1)(c) of the Rules Governing Judicial Conduct provides that a judge shall not engage in financial and business dealings that "involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court in which the judge serves". See Opinions 95-11 (Vol. XIII), 91-108 (Vol. VIII), 89-37 (Vol. III). Here, the relationship preceded the judge's ascending the bench, and has now been concluded, except for the fact of payment.
Notwithstanding the apparent termination of the business relationship, the Committee is of the view that disclosure and recusal are required. Section 100.2 of the Rules Governing Judicial Conduct requires that a judge shall avoid impropriety and the appearance of impropriety in all activities. Presiding over a case being handled by an attorney who presently owes the judge money as a result of a prior business relationship or who has recently paid or is about to pay money to the judge in settlement of a prior business arrangement, could readily constitute impropriety or the appearance of impropriety.
The judge should therefore disclose the relationship and recuse himself or herself from any lawsuit in which the attorney appears. It is suggested that the judge follow this practice for a period of two years from the date of payment. Opinions 94-05 (Vol. XII), 92-01 (Vol. IX), 91-143 (Vol. VIII).
In accordance with section 100.3(F) of the Rules if, following the disclosure
and offer of disqualification, the parties agree to have the judge continue
on the matter, and the judge believes that he/she will be impartial and
is willing to participate, the judge may preside.