October 26, 2011
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 Justice :
This responds to your inquiry (11-52) asking whether an attorney who maintains his own office, but with whom you have exchanged referrals of two cases, may appear before you and your co-justices.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). Consequently, while the two cases are on-going and any fees remain unpaid, you must disqualify yourself from all cases in which the attorney appears, as your impartiality might reasonably be questioned given your financial relationship. Although disqualification is subject to remittal (see 22 NYCRR 100.3[F]), remittal is not available when a party is self-represented or if a matter is before the court ex-parte.
It is the Committee’s view that, because your relationship involves referrals of only two cases, the attorney is not your associate within the meaning of the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[B]; cf. Opinion 09-100 [citing examples of “associate” relationships). Accordingly, the attorney may appear in the court where you preside before your co-justices.
Enclosed, for your convenience, is Opinion 09-100 which addresses this issue.
Very truly yours,
George D. Marlow, Assoc.
Justice, Appellate Division,
First Dept. (Ret.)