June 11, 2015
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: (1) A full-time judge may accept compensation for legal or fiduciary services he/she performed before assuming the bench. (2) A full-time judge is disqualified, subject to remittal, from matters involving his/her former partners and associates for two years after the relationship completely ends. The judge must also assess any ongoing social relationship he/she may maintain with his/her former partners and associates, which may extend the period for some attorneys. (3) During the disqualification period, the judge may not appoint his/her former partners or associates to fiduciary positions. (4) A full-time judge is disqualified, subject to remittal, from matters involving his/her former clients for two years after the relationship completely ends. (5) The propriety of issuing a “blanket” disqualification order to facilitate assignment of certain cases to another judge is an administrative question which the Committee may not address.
Rules: NYS Const, art VI, § 20(b)(4); Judiciary Law §§ 14; 212(2)(l); 22 NYCRR 36.0; 100.2; 100.2(A); 100.2(B); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(b)(i)-(ii); 100.3(F); 100.4(D)(1)(c); 100.4(E); 100.4(G); 101.1; Opinions 15-63; 15-51; 13-64; 11-125; 11-45; 11-43; 11-21; 09-138; 06-149; 05-130(A); 01-07; 00-67; 00-03; 97-09; 95-12; 93-44; 89-31.
A judge, who previously practiced law in a private law firm and also served as counsel to the Public Administrator, asks several interrelated questions about receipt of income from prior legal work and possible disqualification or limitations on appointment powers relating to his/her former law partners and former clients.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A full-time judge may not practice law or serve as a fiduciary, except as expressly permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[E]; 100.4[G]; see also NYS Const, art VI, § 20[b] [prohibiting certain judges from practicing law]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not engage in “continuing business relationships with those lawyers ... likely to come before the court on which the judges serves” (22 NYCRR 100.4[D][c]). A judge must exercise the power of appointment “impartially and on the basis of merit” and “avoid nepotism and favoritism” (22 NYCRR 100.3[C]; see also 22 NYCRR 36.0 [judge must make Part 36 appointments “on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case”]). A judge also must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), including when the judge knows that the judge served as a lawyer in the matter in controversy or a lawyer with whom the judge previously practiced served during such association as a lawyer concerning the matter (see 22 NYCRR 100.3[E][b][i]-[ii]).
Receipt of Fees for Prior Legal or Fiduciary Work
1. May the inquiring judge request and accept fees from an Acting Surrogate for work he/she performed before assuming the bench?
This Committee has advised that a full-time judge may collect legal fees he/she earned before assuming the bench (see Opinions 11-21; 05-130[A]; 00-03; 97-09; 95-12; 93-44). If they were fully earned before taking office, the judge may accept the fees without violating the law practice prohibition or rules governing the financial and business activities of full-time judges (see Opinion 00-03). For example, assuming the fee arrangements are otherwise proper, a judge may collect contingency fees to the extent earned before taking office (see Opinions 05-130[A]; 93-44 [judge may receive a fair and reasonable percentage of the fees fairly allocable to services rendered before the judge took the bench, which the judge’s former partners ultimately earn in two contingent fee cases]). A judge may even collect fees previously earned that were “not payable for ‘one or more years’” (Opinion 95-12). A judge may also receive the fair market value of his/her interest in a law partnership dissolving as a result of the judge’s election, as determined based on generally accepted accounting principles (see Opinion 00-03).
Whether an Acting Surrogate is the judge with appropriate jurisdiction to determine any pending or outstanding fees in this circumstance is a legal question on which the Committee cannot comment (see generally Judiciary Law § 212[l]; 22 NYCRR 101.1).
Former Law Partners
The judge asks two questions about presiding in matters involving his/her former law partners:
2. May the judge preside in matters where his/her former law partner appears as counsel to the Public Administrator?
3. (a) May the judge appoint his/her former partners to fiduciary positions? (b) May the judge preside or appoint former partners as fiduciaries, in cases where the former partner has a family relationship to a party, or an existing legally recognized duty or interest in the matter?
The Committee has previously advised that a judge who will be receiving compensation in ending a business relationship, including a law practice, with the judge’s former law partner must disqualify him/herself from matters in which the former partner appears, for two years from the termination of the relationship or final payment of any fees pending or owed between them, whichever is later (see Opinions 15-63; 11-145; 00-67). That is, the two-year period does not begin until the business and financial relationship completely terminates (see id.).
Moreover, the Committee also recognizes that a close professional relationship between law partners, especially in a small firm, frequently includes a social relationship that survives the professional one, so that any additional ongoing social factor may extend the period of disqualification and make it difficult for the Committee to establish a precise, specific time frame for the judge to continue recusal and/or disclosure in any such combined business termination/ongoing social relationship (see Opinions 11-125; 11-45; 89-31). Thus, the judge must also assess any ongoing social relationship he/she may maintain with his/her former partners and associates in light of the Committee’s prior opinions, which may extend the period for some attorneys (see id.).
During the disqualification period, the judge may not preside in matters involving his/her former partners and associates, whether they appear as lawyers or fiduciaries. Similarly, the judge may not appoint his/her former partners and associates to any fiduciary or counsel appointments during this period (see Opinion 11-43; 22 NYCRR 100.3[E]).
The fact that the judge’s former partner or associate is serving as a fiduciary and/or existing appointment in their capacity as a relative of a litigant or as a fiduciary appointed due to their professional status is a distinction that does not merit a different result (see 22 NYCRR 100.3[E]).
In sum, disqualification is required when the judge’s former law partner appears in the judge’s court as a fiduciary, attorney, litigant, or as a potential appointee of the judge, during the settled two-year period; or possibly longer, depending on the totality of the circumstances (see e.g. Opinion 11-125).
A disqualification because the judge has previously served as a lawyer in the matter is not subject to remittal (see 22 NYCRR 100.3[E][b][i]; 100.3[F]; Opinion 13-64; see also Judiciary Law § 14). Conversely, disqualification arising out of a former partner’s appearance is subject to remittal, unless a party appears without counsel, where remittal is not permitted (see generally 22 NYCRR 100.3[E]; 100.3[E][b][ii]; 100.3[F]; Opinions 11-45; 06-149; 01-07).1
4. May the inquiring judge preside over cases involving the Public Administrator and/or Deputy Public Administrator? If not, is there a specific time period in which the judge is disqualified?
The inquiring judge formerly had an attorney/client relationship with the Public Administrator’s Office. The Committee has advised that a judge is disqualified, subject to remittal, for two years after representation of a former client ends or final payment of any fees pending or owed to the judge, whichever is later (see Opinion 15-51). Again, the two-years do not begin to run until the business and financial connection has finally ended.
As for what should happen after the two years have elapsed, the Committee advised in Opinion 15-51 (citations omitted), modifying prior opinions:
on further consideration, the Committee believes that, once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant. ... In exercising his/her discretion as to whether or not to make disclosure after the two-year period has elapsed, the judge should consider factors such as “the amount of time elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety.” Because disclosure is purely discretionary after the two-year period ends, a judge who chooses to disclose voluntarily is not thereafter required to disqualify him/herself if a party is appearing without counsel or if a party objects to the judge’s continuing to preside.
As earlier noted, the judge may not preside if he/she has previously served as a lawyer in the matter; this obligation does not expire and is not subject to remittal (see 22 NYCRR 100.3[E][b][i]; 100.3[F]; see also Judiciary Law § 14).
“Blanket” Recusal Order
5. May the judge issue a “blanket” recusal order in a certain category of cases to facilitate assignment of these cases to an Acting Surrogate?
The propriety of issuing a “blanket” disqualification order to facilitate the assignment of cases to an Acting Surrogate when the judge is disqualified is an administrative question to be directed to an appropriate Administrative or Supervising Judge (see Judiciary Law § 212[l]; 22 NYCRR 101.1).
1 Where permitted, remittal is a three-step process. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she is able both to be 1) impartial and 2) willing to preside in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the proceeding’s record (see Opinion 09-138; 22 NYCRR 100.3[F]).