May 24, 2016
This responds to your inquiry (16-48) asking several questions about your ethical obligations after an attorney placed certain personal information about you or your family on the record in open court. On receiving a redacted transcript, the attorney moved for an unredacted copy and attached as exhibits certain additional information concerning you and your family.
1. Must you provide an unredacted copy of the transcript, as requested?
This presents a question of law beyond the Committee’s authority to answer (see Judiciary Law § 212[l]; 22 NYCRR 101.1); but if you determine in good faith that withholding your personal information is legally appropriate, then withholding it is presumed to be ethical.
2. Are you disqualified from presiding in a case where: (a) a party and his/her spouse are long-time acquaintances of your spouse, who may use the same local gym or attend the same house of worship as you and/or your spouse; and (b) an associate in that party’s law firm was your court attorney more than a decade ago, but subsequently has had “almost no contact” with you?
Whether a judge is disqualified based on such relationships depends on many factors (see Opinion 11-125 [defining obligations for different categories of relationships]; cf. Opinion 14-27 [imposing a one-year disclosure period for the judge’s former personal law clerk]). Where the connections described are at the acquaintance level or are coincidental, or otherwise remote and tenuous, neither disclosure nor disqualification is mandatory. Both are discretionary and the judge is the sole arbiter of whether to disclose or disqualify on these facts. (see Opinion 11-125).
3. Must you report the attorney who is attempting to include information concerning you and your family in the record?
“A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the [Rules of Professional Conduct] shall take appropriate action” (22 NYCRR 100.3[D]). Ordinarily, the judge who has observed the conduct is in the best position to make a determination as to whether the two prongs of this test are satisfied, and, if so, to determine what action is appropriate under the circumstances (see Opinion 10-85).
Enclosed, for your convenience, are Opinions 14-27, 11-125 and 10-85 which address these issues.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dep’t (Ret.)