January 30, 2014
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).
Digest: Under the unique facts presented, a judge who sold his/her former law office telephone number to an attorney for a lump sum must disclose the business transaction when the purchasing attorney appears before the judge, for a one-year period following receipt of payment.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 12-36; 06-62; 05-130(B); 97-44 (Vol. XV).
The inquiring judge, who recently closed his/her private law office upon assuming the bench full-time, states that an attorney purchased the judge’s former office telephone number. The transaction was a one-time business transaction, in which the attorney paid the judge a one-time lump sum, and the telephone company transferred the telephone number to the attorney. As a result, anyone who now calls the judge’s former law office telephone number will reach the office of the attorney who purchased the number. The judge advises that the attorney “is not using or advertising [the judge’s] old number or [the judge’s] name.” The judge states that he/she did not sell or transfer any portion of his/her former law practice to the attorney, and will not share in any fees generated from clients who call the number. The judge asks what, if any, ethical obligations he/she has if that attorney appears before him/her; and what is the duration of any such obligation(s).
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]). A judge must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][a]-[e]; Judiciary Law §14).
The present inquiry appears to be a matter of first impression for the Committee.
In addressing a judge’s obligations following sale of his/her prior law practice to an attorney, the Committee has generally advised, in effect, that the judge is disqualified subject to remittal for a two-year period when the attorney appears before the judge (see Opinions 06-62; 05-130[B]; 97-44 [Vol. XV]). The Committee explained that “the receipt of a stream of payments in connection with that sale does constitute a continuing business relationship” (Opinion 06-62).
Here, however, the judge did not sell his/her law practice to the attorney, and there will be no “stream of payments” or ongoing connection between them. The Committee notes that, although the amount paid for the telephone number is likely to reflect the attorney’s hope (far from a certainty) that he/she will have the opportunity to offer his/her legal services to individuals who do not realize that the judge has ceased practicing law, the amount is inevitably a much smaller investment than would be needed to purchase the judge’s law practice. The one-time payment contemplated here is thus a much smaller economic benefit to the judge, and is far less likely to be perceived as a possible influence on the judge or otherwise cause the judge’s impartiality to be reasonably questioned (see 22 NYCRR 100.3[E]).
Therefore, under these unique facts, the Committee believes the judge must, for one-year after the consideration has been paid in full, disclose the transaction when the attorney who purchased the judge’s office phone number appears before the judge. After disclosure, as long as the judge concludes he/she can be fair and impartial, the judge has complete discretion to grant or deny any subsequent request for recusal based on all the facts and circumstances. However, because disclosure is mandated during this period in lieu of outright disqualification, the judge must not preside if any party is appearing without counsel, and remittal is not available (see Opinion 12-36).