Opinion 19-33

March 14, 2019

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A support magistrate who did not sell his/her former law practice, but instead simply forwarded clients’ files and transferred the remaining retainer balances to an attorney chosen by the clients, is disqualified, subject to remittal, in matters where the attorney appears for a period of one year following the transfer. Disqualification is not required for other members of the attorney’s firm.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 18-31;14-13; 06-62; 97-44.

Opinion:

         A support magistrate closed his/her former law practice when he/she was appointed to office a little over a year ago and allowed his/her clients to select their new counsel. The support magistrate then forwarded the applicable files and any unused retainer balances to the new attorneys. One attorney, with whom the support magistrate had no prior business relationship, took on several clients including two cases that needed “a minimal amount of additional work.” These cases have since been resolved, and the magistrate now asks if he/she may hear cases handled by that particular attorney, as well as by members of the attorney’s firm.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself from any proceeding in which the judge’s “impartiality might reasonably be questioned” (22 NYCRR 100.3 [E][1]), or in other circumstances as required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). For example, a judge must never preside in a case where he/she “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; 100.3[F]; Judiciary Law § 14).

         We have previously addressed the issue of a judge’s obligations following sale of his/her prior law practice (see Opinions 18-31 [a new surrogate who sold his/her cabinet of wills to an attorney for a one-time payment may not preside in any cases involving the purchased wills and is disqualified, subject to remittal, in all other cases involving the attorney for two years following the payment for the files]; 06-62 [a judge who sells his/her practice to another local lawyer must disclose the business relationship and is disqualified, subject to remittal, when the purchasing attorney appears before the judge for a period of two years following the receipt of final payment for the practice]; 97-44 [a judge who is being paid money by an attorney in concluding a prior business arrangement between them must disclose the relationship and, recuse him/herself, subject to remittal, when the attorney appears before the judge for a period of two years from the date of payment]).

         Here, the distinguishing factor is that there was no sale or purchase of the judge’s client files; the judge simply transferred the files and any remaining retainer to the new attorney without compensation. Thus, we draw a rough analogy to the unique factual circumstances of Opinion 14-13, where a judge sold his/her former law office telephone number to another practicing attorney for a lump sum, one-time payment. Because the judge did not sell his/her law practice to the attorney and there would be no “stream of payments” or “continuing business relationship,” we advised that the judge need only disclose the transaction when the attorney appears before the judge for one year after the consideration was fully paid.

         Here, too, we believe a two-year disqualification period is unnecessary. Although the support magistrate here (unlike the judge in Opinion 14-13) transferred his/her client files to another attorney, he/she did so without compensation and allowed the clients to select their new counsel. Thus, there is no financial relationship or any continuing business relationship between the support magistrate and the attorney. For one year following the transfer, the support magistrate must disqualify him/herself when that attorney appears but the disqualification is subject to remittal after full disclosure on the record, as long as no party is appearing without counsel.¹ This obligation is personal to the attorney to whom the judge transferred the client files; neither disclosure nor disqualification is required in matters involving other members of the attorney’s firm, provided the support magistrate determines that he/she can be fair and impartial.

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¹As a reminder, remittal of disqualification requires the affirmative consent of the parties and their counsel, which must be placed on the record; a mere failure to object is not sufficient (see 22 NYCRR 100.3[F]).