Opinion 24-62
March 14, 2024
Digest: Where a judge’s association with his/her former law firm ended less than two years ago, the judge must disqualify in a matter involving a current client of the judge’s former law firm, even if the party has not appeared in the matter. This disqualification is subject to remittal.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 17-100; 16-36.
Opinion:
The inquiring judge’s connection with his/her former law firm ended less than two years ago. The judge has recently learned that one of the defendants in a case assigned to the judge is a current client of the judge’s former law firm.[1] After disclosure, plaintiff’s counsel requested that the judge recuse him/herself. The judge’s former law firm has no apparent involvement in the matter before the judge, as the law firm’s client, one of several defendants in the case, was served well over a year ago but has not appeared or filed a notice of appearance. Nor has any motion been made for default judgment against that defendant. The judge believes he/she can be fair and impartial, and asks whether disqualification is ethically required.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
For two years from the date that the relationship between a judge and their former law firm completely ends, the judge is disqualified from all matters “involving a party the judge recognizes as a current or former client of the law firm, even though a different law firm is representing the client” (Opinion 16-36; see also Opinion 17-100 [disqualification required for two years after representation of client ends or final payment to judge, whichever is later]).
This defendant is a party to the action before the judge, notwithstanding its failure to appear, and is also a client of the judge’s former law firm in another case. As the judge is still within the two-year disqualification period for current and former clients of the judge’s former law firm, the judge is therefore obligated to disqualify him/herself, subject to remittal.[2]
Remittal is a multi-step process which requires full disclosure on the record and the voluntary, affirmative consent of the appearing parties and (if represented) their counsel. First, the judge must fully disclose the basis for disqualification on the record (see 22 NYCRR 100.3[F]). Second, without participation by the judge, all the parties who have appeared and not defaulted, and their lawyers, must agree that the judge should not be disqualified (id.). Then, if the judge believes he/she will be impartial and is willing to participate, the judge may accept remittal of disqualification and preside in the matter. The agreement must “be incorporated in the record of the proceeding” (id.).
Although the inquiring judge here has made a disclosure, the parties that have appeared in the case do not “all agree” that the judge should not be disqualified (22 NYCRR 100.3[F]). The judge is therefore disqualified.