September 1, 2017
This responds to your inquiry (17-100) asking if, after having served as a full-time judge for two years, you may preside over new filings involving a former client if an attorney, not affiliated with your former law firm, now represents the former client.
A judge is disqualified, subject to remittal,1 from presiding in any matters involving a former client 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” (Opinion 15-126).2 Significantly, the two years “do not begin to run until the business and financial connection” with the former client “has finally ended,” including final payment of all fees pending or owed to the judge from the former representation (id.; see also Opinions 16-36; 15-51; 12-179). The same principle applies for the institutional client you have described, regardless of its current choice of counsel. As long as there are outstanding fees payable to you for legal work you previously performed for this client, the two-year period does not start to run.3
After the two-year period has elapsed, it is 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, the judge should consider several factors as set forth in Opinion 15-51, enclosed herewith.
Enclosed, for your convenience, are Opinions 16-36; 15-126; 15-51; and 12-179 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court
1 Where permitted, remittal is a three step process as set forth in Opinion 15-126 n 1, enclosed herewith.
2 If the judge waives or renounces all fees with respect to any remaining referred cases, in a writing to the firm involved, the judge is not required to disqualify him/herself when the law firm appears in other, unrelated cases.
3 Of course, the judge may not preside if he/she has previously served as a lawyer in the matter involving the former client. This obligation does not ever expire and is never subject to remittal (see 22 NYCRR 100.3[E][b][i]; 100.3[F]; Judiciary Law § 14).