June 18, 1999
Digest: A judge must exercise recusal where
an attorney who represented the judge and members of the judge's family
appears before the judge within two years of the representation. Thereafter,
the judge should disclose the relationship and, in the exercise of discretion,
consider all relevant factors in determining whether to recuse.
Rule: 22 NYCRR 100.3(E)(1); 100.3(F);
Opinions 98-161: 93-61 (Vol. XI): 92-54 (Vol. IX):
90-179 (Vol. VI): 88-120 (Vol. II).
An appellate judge received a prior opinion from the Committee advising that disclosure was not required when an attorney, who represented the defendant in a medical malpractice action brought by the judge and the judge's spouse, on behalf of their minor child, appears before an appellate panel which includes the judge. Opinion 98-161. The judge now asks if it would be "proper for me to hear appeals in which the attorney who successfully represented me in the malpractice litigation is appearing [as an attorney on an appeal]."
In prior opinions, this Committee advised that disclosure and consent of the parties was required in cases involving an attorney who previously represented a judge. A two-year period of recusal was advised. Absent remittal of disqualification, there must be recusal. 22 NYCRR 100.3(F). Thereafter, the judge should disqualify him/herself only if the judge doubts the ability to be impartial. 22 NYCRR 100.3(E)(1); Opinions 93-61 (Vol. XI); 92-54 (Vol. IX); 90-179 (Vol. VI); 88-120 (Vol. II).
Thus, for a period of two years after the conclusion of the representation, the judge must disclose the relationship and disqualify him/herself upon the request of either party. After two years, and assuming that the judge feels that he/she can remain fair and impartial, the judge should, based upon a consideration of all relevant factors at that time, disclose the relationship and, in the exercise of discretion, seriously consider recusal upon request. See e.g., Opinion 92-54 (Vol. IX).