June 3, 2014
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 (14-47) asking whether it is ethically permissible for you to preside over cases in a problem-solving court where you know that some of your former clients, from your prior service as a public service attorney, will appear as participants.
The Committee has previously advised that if the last representation of the client occurred within two years of the judge ascending to the bench, the judge is disqualified, subject to remittal, when the former client appears before the judge (see 22 NYCRR 100.3[F]; Opinion 09-138 [describing remittal process]). Remittal is not available if any of the parties appears pro se. In addition, a judge may not preside over any case if he/she is aware of having previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][b][i]) or in a closely related matter (see Opinions 14-10 and 14-07; cf. Opinion 13-02 [discussing when the facts of two matters are “clearly intertwined”]). Disqualification from a case on this basis is mandatory and permanent; and thus it is not subject to remittal (see 22 NYCRR 100.3[F]).
Enclosed, for your convenience, are Opinions 14-10; 14-07; 13-02; 09-138; 95-05 and 94-71 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)