Opinion 07-26

June 7, 2007

Please Note: This opinion has been modified by Opinion 21-120, which states: “A judge’s obligation to disqualify in matters involving their former campaign manager terminates two years after the campaign manager relationship has ended.  Once the two-year period expires, the judge may preside in matters involving the former campaign manager, provided the judge can be fair and impartial, and disclosure is not required.  Opinions 06-54 and 07-26 are overruled or modified to the extent inconsistent with this conclusion.”

Digest:       (1) A judge must exercise recusal for a period of two years after his/her employment with a law firm ends, when that firm’s associates or partners appear before the judge; (2) Whether a judge must disclose or recuse where an attorney appearing before him/her has been a political supporter or contributor during the judge’s prior campaigns for non-judicial office depends on the extent of the attorney's involvement in these campaigns; (3) A judge must exercise recusal, subject to remittal, when that judge and the spouse of an attorney appearing before the judge have a social relationship that is sufficiently close so as to create a perception the judge's impartiality might reasonably be questioned.

Rules:        22 NYCRR 100.2; 22 NYCRR 100.3(E); 22 NYCRR 100.3(F); Opinions 06-149; 06-54; 05-147; Joint Opinion 05-89 and 05-90; Opinions 04-106; 01-06 (Vol. XIX); 90-196 (Vol. VI); 90-182 (Vol. VI); 89-107 (Vol. IV).

Opinion:

         A part-time town justice asks if he/she must exercise recusal: (1) when an associate or partner in the firm where the town justice was previously an associate appears before him/her, and, if so, the length of time for such recusal; (2) when an attorney who was a political supporter or financial contributor of the judge’s prior non-judicial campaigns appears before the judge; and, (3) when the town justice has a social relationship with an attorney appearing in the town justice’s court, or with the attorney’s spouse.

         A judge must perform the duties of judicial office impartially and diligently and must disqualify himself/herself in a proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3, 100.3(E)(1). Thus, as to the judge’s first inquiry, the Committee has previously advised that a judge must disqualify himself/herself, subject to remittal, for a period of two years after leaving a law firm, when an associate or partner of that law firm appears in the judge’s court. Opinions 05-147; 01-06 (Vol. XIX); 22 NYCRR 100.3(F).

         Whether a judge must exercise recusal when a previous supporter or contributor to the judge's prior campaigns for elective non-judicial office appears before him/her depends on the level of the supporter’s or contributor’s involvement in these campaigns. This Committee has previously advised that a judge must disclose that a person appearing before him/her is the judge's campaign manager. Opinions 06-54; 90-182 (Vol. VI); 89-107 (Vol. IV). For a period of two years following the campaign’s end, a judge must recuse from any matters involving the former campaign manager personally as counsel, subject to remittal. Opinion 06-54. Thereafter, the judge need not recuse, but must disclose the person’s role in the campaign. Id.

         The Committee also has concluded that a judge need not exercise recusal when attorneys appear before him/her who have allowed their names to be used by the committee to elect the judge or voluntarily submitted their names for that purpose [Opinion 90-182 (Vol. VI)]; who helped gather petitions and distribute flyers for the judge's campaign [Opinion 90-196 (Vol. VI)]; or, who merely have attended fund-raising events. [Opinions 04-106]. Nevertheless, a judge must avoid even the appearance of impropriety. 22 NYCRR 100.2. If the inquiring judge feels, therefore, that he/she cannot be impartial or that a person’s involvement in the judge’s campaign creates an appearance of impropriety, he/she must exercise recusal. 22 NYCRR 100.3(E).

         Whether a judge who has a social relationship with an attorney or an attorney’s spouse must exercise recusal when that attorney appears before him/her depends on the nature of the relationship. If the relationship is on-going and "appears to be sufficiently close so as to give rise to a perception" that the judge's impartiality might reasonably be questioned, the judge should recuse himself/herself or, "at the very least, disclose the relationship." Opinion 06-149; Joint Opinion 05-89 and 05-90. Such recusal is subject to remittal. 22 NYCRR 100.3(F).