May 2, 2019
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: Where a town justice’s law firm formerly had a business relationship with another firm involving uncompensated courtesy referrals, the judge is disqualified from all cases in which the other firm appears for two years from the date their business relationship completely terminated. The disqualification is subject to remittal after full disclosure, provided no party is appearing without counsel.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.6(B)(1)-(5); Opinions 18-80; 16-130; 15-63; 06-63; 91-120.
A part-time town justice who is also a practicing attorney asks if he/she may preside over cases where a law firm that was recently appointed as part-time town prosecutor (“Firm B”) appears on traffic matters. The judge’s law firm and Firm B do not have an ongoing business relationship but apparently coordinated efforts on two cases in recent years. In the first scenario, the judge’s law firm took on a representation Firm B could not handle, but there is no referral fee or other financial relationship associated with this interaction. Rather, the client apparently selected the judge’s law firm from “among others” suggested by Firm B. In the second scenario, Firm B apparently referred a legal matter to the judge’s law firm, and the firms signed a joint defense agreement in connection with it. Since then, the partner involved at Firm B changed law firms and took the related business with him/her. It appears that Firm B no longer has any identifiable interest in the matter. On consulting with his/her law partner(s), the judge clarified that the relationship between the firms involved occasional, uncompensated “courtesy referrals” from time to time between the firms.1
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]). A part-time judge is permitted to practice law, subject to limitations (see generally 22 NYCRR 100.6[B]-). A judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), although disqualification may be remitted in appropriate circumstances (see 22 NYCRR 100.3[F]).
In general, a judge who has a business and financial relationship with a law firm is disqualified from presiding in matters involving that firm while the relationship is ongoing and for two years from the date the relationship completely ends (see e.g. Opinions 15-63; 18-80). In Opinion 06-63, a part-time lawyer-judge had “a professional, ad hoc working relationship with an attorney who had been representing a client of the judge in a criminal matter.” We said the judge was disqualified, subject to remittal, from matters involving that attorney “for a two-year period following the apparent conclusion of the matter” (id.; see also Opinion 91-120).
Although Firm B has no identifiable interest in the referred case(s), the judge’s law firm and Firm B have had an informal ongoing business relationship involving occasional, uncompensated “courtesy referrals” from time to time between the firms. Under these circumstances, the inquiring judge is disqualified for two years from the date the business relationship between the firms completely ended.
We understand that the courtesy referrals between the firms involved a single partner at Firm B, who has now left the firm. If, as it appears, the relationship between the two firms completely ended on the date the partner who made or received these referrals left Firm B, then the two-year period begins to run on the date the referring partner left Firm B.
This disqualification is subject to remittal only if no party is appearing without counsel. As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:
As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.
1 This might occur, for example, if one firm had a conflict or lacked the requisite expertise.