Opinion 09-239

January 27-28, 2010

Please Note: Opinion 12-154 has abolished the requirement that a judge must disclose and/or recuse whenever a relative of his/her co-judge appears.  Please review Opinion 12-154 for more information.

Digest:        A judge need not disqualify him/herself when an attorney, who appears in the judge’s court, previously testified as a witness in an unrelated proceeding in the judge’s court and whose credibility the judge had to assess in reaching a decision, as long as the judge believes he/she can be fair and impartial. Also, the inquiring judge may not permit his/her co-judge’s law practice associates to practice before the inquiring judge.

Rules:         Judiciary Law §471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(1); 100.6(B)(3); Opinion 09-100; 08-129; 07-126;. Joint Opinion 07-78 and 07-121; Opinion 05-124; 05-114; 02-108; 99-170 (Vol. XVIII); 98-134 (Vol. XVII); 95-15 (Vol. XIII); 91-56 (Vol. VI); 90-111 (Vol. VI); 89-105 (Vol. IV); 89-104 (Vol. IV); 89-100 (Vol. IV); People v Moreno, 70 NY2d 403 (1987); People v Brown, 26 NY2d 168 (1969).

Opinion:

         A part-time lawyer judge advises that he/she has held an evidentiary hearing in a particular matter and is preparing to render a decision. The judge further advises that he/she will determine the credibility of certain witnesses, one of whom is an attorney who regularly appears in the judge’s court and is related within the first degree to another judge in the same court. The inquiring judge asks whether he/she “should or can” exercise recusal in future cases in which this witness appears as counsel.

         A judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities (22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in a matter where the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a part-time lawyer judge is not ordinarily disqualified from presiding over matters in which a co-judge’s close relative appears as counsel, as long as the judge can be fair and impartial, although the relationship should be disclosed if the court has only two judges [see Opinions 08-129 [spouse]; 05-124 [brother]; 05-114 [brother-in-law]; 99-170 [Vol. XVIII] [parent or sibling]; 95-15 [Vol. XIII] [spouse]; 90-111 [Vol. VI] [spouse]; 89-105 [Vol. IV] [son]; 89-100 [Vol. IV] [son and daughter-in-law]). Similarly, the fact that a witness is a close relative of the inquiring justice’s co-judge does not, in and of itself, preclude the inquiring judge from determining the witness’s credibility, as long as the judge can be fair and impartial (see Opinion 02-108 [a town justice need not exercise recusal in a proceeding in which a likely material witness is an officer of a political party that designated that judge for judicial office but who played no specific role in the judge’s campaign beyond that]; compare e.g. Opinion 91-56 [Vol. VI] [judge needs consent of the parties to preside at a trial in which the judge’s spouse is a business partner of an expert witness]).

         The Committee also has recognized that a judge, due to specialized “‘learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination’ based on appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making such determination” (see Joint Opinion 07-78/07-121, quoting People v Moreno, 70 NY2d 403, 406 [1987] and People v Brown, 24 NY2d 168, 172 [1969]). Thus, a judge may ordinarily rule on the credibility of a witness who happens to be an attorney, and may subsequently continue to preside over matters in which that attorney appears as an advocate, as long as the judge believes that he/she can be fair and impartial (see Joint Opinion 07-78/07-121 [ Family Court judge who also presides in a Problem Solving Court is not ordinarily required to exercise recusal when a party appearing in the Family Court also appeared before the judge in a Problem Solving Court, although “[i]f ... [the] judge cannot be impartial in a particular case based on the knowledge he/she gained from the prior proceedings, ... then he/she must exercise recusal]; Opinions 98-134 [Vol. XVII] [ judge does not have to recuse himself/herself solely on the basis of past decisions involving any party]; 89-104 [Vol. IV] [“There is no per se requirement for disqualification of a judge based upon the judge’s having learned facts about a matter in a judicial capacity. If, on the other hand, the judge harbors doubts as to his or her ability to remain impartial in the second proceeding, the judge should recuse himself or herself”]; cf. Opinion 07-126 [distinguishing evaluating legal arguments and evidence from attorneys from evaluating a lawyer’s testimonial credibility]).

         Thus, a judge need not disqualify him/herself when an attorney who appears in the judge’s court previously testified as a witness in an unrelated proceeding whose credibility the judge had to assess in reaching a decision, as long as the judge believes he/she can be fair and impartial.

         However, in the present inquiry, there is additional information possibly not known to the inquiring judge that could present ethics implications beyond the question presented and that may require him/her to make inquiry of the co-judge’s relative/attorney.

          Pursuant to the Rules Governing Judicial Conduct, a part-time judge who is a lawyer is permitted to practice law (22 NYCRR 100.6[B][1]), may not permit his/her partners or associates to practice law before any of his/her co-judges in the court in which he/she presides (22 NYCRR 100.6[B][3]). The Committee has construed the term “associate” in Rule 100.6(B)(3) more broadly than the traditional notion of a law firm associate (see Opinion 09-100). Thus, to the extent the inquiring judge’s co-judge maintains an active law practice and one or more of the co-judge’s close relatives, including the witness/attorney, may appear to be professionally associated with that law practice, it is possible that the inquiring judge cannot permit these attorneys to appear on behalf of clients in his/her court (see 22 NYCRR 100.6[B][3]). Thus, the inquiring judge must inquire into the professional relationship between the co-judge and the co-judge’s lawyer relatives. If the inquiring judge thus learns his/her co-judge’s attorney relatives are the co-judge’s law firm associates, the inquiring judge may not permit them to practice in his/her court (see Judiciary Law §471; 22 NYCRR 100.6[B][3]).