October 7, 2013
Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”
This responds to your inquiry (13-106) asking what your recusal obligations are with respect to two attorneys with whom you maintain differing social relationships. You are friendly with and are part of the same circle of friends with an attorney who regularly appears before you. Another attorney, a former colleague from 15 years ago, who attended your wedding and whose wedding you attended over 10 years ago, appears before you on occasion.
Interpersonal relationships between judges and attorneys are varied, fact-dependent, and unique to the individuals involved. Therefore, the Committee can provide only general guidelines to assist judges who ultimately must determine the nature of their own specific relationships with particular individuals and their ethical obligations resulting from those relationships. These obligations are set forth in detail in Opinion 11-125, and it is within your discretion to determine whether disclosure or disqualification is required given the particular nature of each relationship.
If, however, you determine that neither disclosure nor disqualification is required for a particular attorney, any disclosure you choose to make would be purely prophylactic, and, therefore, you need not disqualify yourself when litigants appear pro se. Of course, if you doubt your ability to be impartial, you must disqualify yourself (see 22 NYCRR 100.3[E]).
Enclosed, for your convenience, is Opinion 11-125, which addresses this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)