Opinion 09-45

May 15, 2009

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).

Dear Judge:

         This responds to your inquiry (09-45) asking whether you may preside when an attorney who appears before you practices law with an attorney who represented you on a matter that is now concluded. In the event you are disqualified from presiding, you also ask whether the attorneys and their clients may remit your disqualification.

         The Rules Governing Judicial Conduct require a judge to disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). The Committee previously has advised that, for a period of two years after the representation ends, a judge must disqualify him/herself from presiding when an attorney who represented the judge in a personal matter appears in the judge’s court (see Opinion 06-16). The disqualification extends to members of the attorney’s firm as well (see 08-10; 91-10). Your disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]) unless a party is self-represented (see Joint Opinion 07-114/07-120).

         Although the Committee did not specifically mention the availability of remittal in Opinion 05-143, it was not the Committee’s intention to preclude it under the facts presented.

         Because disqualification under these circumstances is personal to you, it would not extend to your co-judges.

         Enclosed, for your convenience, are Joint Opinion 07-114/07-120 and Opinions 08-10; 06-16; 05-143; and 91-10 which address this issue.

                                                   Very truly yours,

                                                 George D. Marlow

                                                 Justice of the Supreme Court

                                                 Committee Chair