February 26, 2019
This responds to your inquiry (19-11) asking whether you may appoint an otherwise eligible attorney, who had previously represented your first-degree relative, to a Part 36 appointment in a pending proceeding. You indicate that the prior representation ended over a year ago, the attorney has been paid in full, and no further legal work regarding your relative is anticipated.1
The Committee has advised that a judge must disclose his/her first-degree relative’s relationship with the appearing attorney for a two-year period after the representation has completely concluded and all fees are paid. Thus, the judge may not preside if he/she is unwilling or unable to make full disclosure regarding the attorney’s relationship with the judge’s first-degree relative. Moreover, during this two-year period, the judge may not appoint the attorney to any fiduciary or counsel positions.
After the required two-year disclosure period ends, you may appoint the attorney for positions for which he/she is eligible, provided the appointment is made “impartially and on the basis of merit” (22 NYCRR 100.3[C]). If a party objects to your continued participation in the case based on the appointment, whether to exercise recusal is solely within your discretion.
Enclosed, for your convenience, are Opinions 18-32 and 15-126 (Question 3) which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice (Ret.) Appellate Div., First Dep’t
Hon. Margaret T. Walsh
Justice, Supreme Court
1Under these circumstances, the fact that you and your spouse have no social relationship with your first-degree relative’s attorney does not affect the outcome.