March 29, 2018
Digest: Under the circumstances, a judge who inadvertently presided in a matter involving a recent former client, and received ex parte communications from the former client after deciding the matter adversely to him/her, must make full disclosure to both sides by letter to counsel. The judge must disqualify him/herself from any post-trial, post-judgment applications and any other proceedings in the matter.
Rules: 22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(6); 100.3(E)(1); Opinions 17-169/17-170; 16-36; 13-54.
The inquiring full-time judge conducted a short bench trial in a civil matter, where both sides were represented by counsel. After the judge issued a decision and order dismissing the case, he/she received a phone call from the plaintiff on a personal line. The plaintiff was a former client of the judge and had the judge’s phone number from their prior business relationship. Although the judge had ceased practicing law more than two years earlier, the judge realized on reviewing his/her files that they had met in person within the past year to resolve the former client’s threatened malpractice claim. The judge subsequently received additional ex parte communications from the plaintiff concerning the dismissed case. The judge notes that he/she did not recognize the litigant as a former client and that no one in court informed him/her of the relationship. The judge asks what he/she should do.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must avoid impermissible ex parte communications concerning a pending or impending matter (see 22 NYCRR 100.3[B]; 100.0[V] [“an ‘impending proceeding’ is one that is reasonably foreseeable but has not yet been commenced”]) and must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
Initially, we note that a judge is disqualified, subject to remittal, in matters involving a former client, for a two-year period running from the complete termination of their relationship (see Opinion 17-169/17-170). Here, even though the judge ceased practicing law more than two years ago, the two-year period has not elapsed for this particular client; it began to run from the date on which they resolved the threatened malpractice claim. Still, we have recognized that no system is perfect; a judge might not recognize current or former clients of his/her former firm (see e.g. Opinion 16-36), and thus “disqualification is required only if the judge recognizes a party as a former client or if such former representation is otherwise brought to the judge’s attention” (Opinion 17-169/17-170).
In Opinion 13-54, we considered an inquiry from a part-time lawyer-judge who had inadvertently presided over a case involving a recent former client. In that instance, the inquiry detailed the judge’s “system to prompt defendants to disclose at the outset whether they currently are or previously were clients of the judge’s law firm” (id.). The judge noted that his/her system “was in operation at the time” and had in fact “provided the judge with the necessary information that enabled the judge to disqualify him/herself from a case involving a different former client of the judge’s law firm” that same evening (id. fn 2). Moreover, the judge had not had any personal involvement in the representation, “which was handled exclusively by lawyers in a different office of the firm” (id. fn 1). In analyzing the inquiry, we emphasized that the judge “has implemented a reasonable procedure designed to avoid conflicts involving a current or former client of the judge’s law firm,” although “no procedure is foolproof” (Opinion 13-54). On those facts, we advised (id.):
The Rules Governing Judicial Conduct are rules of reason; they do not ordinarily require judges to sua sponte re-open proceedings that have already been adjudicated. Under the circumstances presented, where the judge was entirely unaware of the prior representation, and the defendant pleaded guilty to a lesser charge with the prosecutor’s consent, it appears the parties suffered no actual or apparent prejudice due to the defendant’s prior relationship with the judge’s law firm. Accordingly, the judge has no ethical obligation to disclose that the defendant is a former client of the judge’s law firm or to take any further action.
Here, by contrast, the inquiry does not suggest the judge had a screening procedure in place to detect recent former clients,1 and the judge resolved the case in a manner adverse to the former client by dismissing the lawsuit. Moreover, as a result of their former business relationship, this former client sent the judge multiple ex parte communications on a personal phone line, rather than making any desired applications through his/her current counsel and/or heeding the judge’s instruction to desist.
In these circumstances, we believe the judge should make full disclosure to both sides by letter to counsel. Although the judge need not take any steps to re-open the case sua sponte, if any party makes a post-trial or post-judgment application, the judge must disqualify him/herself and allow the application to be decided by another judge (see generally 22 NYCRR 100.3[E]). The judge must not preside in any further proceedings in the case.
1 Where, as here, a judge ceased practicing law more than two years ago, we anticipate there would ordinarily be few, if any, “recent” former clients. However, when the jud ge becomes aware of a fee dispute or threatened malpractice suit involving a former client, it may be helpful to consult the Committee for guidance on the specific circumstances presented.