March 12, 2015
PERSONAL AND CONFIDENTIAL
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).
This responds to your inquiry (14-194) asking whether the attorney with whom you share office space may appear before you or your co-judges. You indicate that you maintain separate practices in a shared rented space and also share the utilities and the annual copier maintenance fee. You are not affiliated with each other’s practice and maintain separate staff; separate accounting/payroll; separate telephones, and separate email, business and trust accounts. The exterior signage is separate and you do not advertise jointly.
Where, as here, there is no indicia of any association between the two firms other than sharing office space and joint expenses related to the building, the attorney is not deemed your partner or associate for the purposes of 22 NYCRR 100.6(B)(3), and, therefore, you need not prohibit him/her from appearing before your co-judges. However, you are disqualified from presiding in cases where the attorney appears, unless the disqualification is remitted (see 22 NYCRR 100.3[F]; Opinion 14-78). Remittal is unavailable if a party is appearing without counsel or if you are unwilling or unable to make full disclosure of the basis for disqualification on the record. In that event or if the parties do not remit the disqualification, you must exercise recusal and the matter be transferred to a co-judge.
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.)