May 10, 2018
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) When an attorney prepares a last will and testament for a judge, and thereafter merely stores the executed original in a safe or safe deposit box pursuant to the attorney’s customary practice, the judge may treat the representation as concluded once all legal work is completed and all fees are fully paid.
(2) Where the representation involved simple reciprocal last wills and testaments for the judge and his/her spouse, and four years have elapsed since the representation concluded, the judge may preside in matters involving the attorney and his/her associates as long as he/she can be fair and impartial. Disclosure is left entirely to the judge’s discretion.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 17-76; 10-56; 08-171/08-174.
A judge asks if he/she must disclose or disqualify him/herself in matters involving an attorney who drafted a last will and testament for the judge and his/her spouse four years ago but continues to retain the original wills “in a safe or safe deposit box, as is the attorney’s customary practice.” In particular, the judge asks if the matter is deemed a continuing representation, even though the wills were executed and all fees were paid four years ago, merely because the attorney is holding the wills. The judge also asks if he/she may preside in matters involving the attorney’s partners and associates.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
1. Ongoing Storage of Executed Wills
When analyzing a judge’s ethical obligations with respect to his/her personal attorneys and their colleagues, it is necessary to determine when the representation is deemed to be fully concluded (see e.g. Opinion 17-76 [setting forth the relevant time periods]).
Thus, the threshold issue is whether the representation has fully concluded, and if so, when. The judge and his/her spouse paid all the lawyer’s legal fees four years ago, once the wills were satisfactorily completed and executed. Indeed, we understand that if the judge or his/her spouse would like the attorney to perform more legal work, a new retainer agreement would be required. On these facts, we conclude the representation fully ended four years ago, and the lawyer’s mere retention of the wills for safekeeping does not constitute a continuing representation.
2. Routine Will Preparation Four Years ago
Here, as more than two years have elapsed since the representation concluded, the judge has no duty to disclose or disqualify him/herself in matters involving partners or associates of the firm who had no involvement whatsoever in the representation (see Opinion 17-76).
As for any attorneys who were personally involved in the judge’s representation, our prior opinions initially call for mandatory disclosure once the two-year period has elapsed (see Opinions 17-76; 10-56; 08-171/08-174). That is, if the judge is willing to preside and all parties are represented by counsel, he/she must fully disclose the fact and nature of the prior representation (see 08-171/08-174). Thereafter, if a party objects to the judge’s participation in the case, whether to exercise recusal is solely within the judge’s discretion (see id.). Nonetheless, we have recognized that the need for continuing disclosure of a former representation may diminish over time in some circumstances (see Opinion 10-56). Factors relevant to disclosure may include the nature of the prior representation, its frequency and duration, the amount of work performed and the size of the fee, whether the representation was routine or technical or involved the morality of the judge’s conduct, and whether there is a social relationship between the judge and the attorney or any special circumstances creating a likely appearance of impropriety (see id.).
Here, as noted, four years elapsed since the prior legal representation completely terminated. The representation was routine, as it involved the preparation of simple reciprocal wills for a married couple. Although the attorney retains the original wills, this is his/her customary practice rather than a special accommodation for the judge. The inquiry reveals no other social or professional relationship between them and no unusual circumstances creating an appearance of impropriety.
On these facts, there is no need for continuing disclosure in matters involving the attorney who drew these wills four years ago.
Thus, provided the judge can be fair and impartial, the judge may preside in matters involving the attorney or his/her law firm colleagues. Although the judge may disclose the former representation, it is not required; and disqualification is entirely within the judge’s discretion, even if a party objects (see Opinions 17-76; 08-171/08-174).