Opinion 08-133

September 11, 2008

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion.

Digest:         A full-time judge who ceased practicing law more than two years ago when he/she assumed the bench must disqualify him/herself, subject to remittal, in a proceeding where a former client appears fewer than two years after the representation ended. When a former client appears more than two years after the representation ended and the nature of the judge’s private law practice was such that it is likely that the parties and/or the real property that are the subject of a current controversy in the judge’s court will be known to the judge, the judge should continue to fully disclose his/her former attorney/client relationships and continue to preside only if he/she can be impartial, and in the absence of a meritorious objection.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 07-35; 01-71; 97-85 (Vol. XVI); 95-05 (Vol. XIII).

Opinion:

         A full-time judge, who ceased practicing law more than two years ago when he/she assumed the bench, asks about disclosure and disqualification when a former client appears in his/her court.

         During the judge’s years in private practice, he/she represented many local clients in real estate litigation, particularly landlord-tenant and code violation matters. Some of these former clients now appear as parties in a substantial portion of the cases on the judge’s landlord-tenant, code violation, and small claims calendars. The judge recognizes that he/she must continue to disqualify himself/herself from all matters in which he/she was personally involved as a lawyer, all matters involving his/her former law firm and all matters in which he/she does not believe that he/she can act impartially. The judge asks, however, whether he/she must continue to disclose his/her former attorney-client relationships and offer to disqualify himself/herself when 1) a former client appears before him/her on new matters; 2) the judge believes that he/she can be impartial; 3) and more than two years have elapsed since the representation ended. If the answer is yes, the judge also asks how long he/she must continue to do so.

         A judge must avoid impropriety and even the appearance of impropriety in all of the judge’s activities (see 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 (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

          The Committee has previously advised that a judge must disqualify him/herself in a proceeding where a former client appears within two years after the representation ended, subject to remittal (see Opinion 01-71). If a former client appears before a judge more than two years after the representation ended, the judge may preside if the judge believes that he/she can be impartial, but only after disclosing the former attorney-client relationship, and in the absence of a meritorious objection (see Opinions 01-71; 97-85 [Vol. XVI]; 95-05 [Vol. XIII]). In evaluating the merits of an objection, the Committee has suggested that a judge consider “such factors as the amount of time elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety” (Opinion 01-71).

         In the Committee’s view, the same general standards and guidelines should apply in the present inquiry when a former client appears in the judge’s court. The nature of the former representation, the nature of the instant proceeding , and the other party involved will be particularly significant, however, because of the nature of the judge’s former law practice. Particularly in landlord-tenant practice and code violation cases, it is not uncommon for the same parties to engage in a series of disputes involving the same property or for the same landlord to be involved in disputes with different tenants involving the same property. It is therefore likely that the parties and/or the real property that are the subject of a current controversy in the judge’s court will be known to the judge because of his/her former law practice. Under such circumstances, the Committee believes that the judge should continue to fully disclose his/her former attorney/client relationships and continue to preside only if he/she can be impartial and in the absence of a meritorious objection.

         The judge advises that, as a practical matter, his/her disqualification from such cases presents administrative difficulties and causes significant litigation delays because there are few co-judges in his/her court. Nevertheless, disqualification is required when a judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The judge also asks if he/she must continue to disclose a former attorney/client relationship for the duration of his/her tenure on the bench. In Opinion 07-35, the Committee advised that, “The Rules Governing Judicial Conduct do not specify a precise time period beyond which a judge’s impartiality can no longer be ‘reasonably questioned.’” The judge, therefore, must exercise his/her discretion each time a former client appears in his/her court (see id.).