September 12, 2019
Digest: A full-time judge who presides in a dedicated guardianship part may seek the advice of attorneys regarding a Medicaid application and home care planning for the judge’s first-degree relative, even if those attorneys regularly appear before the judge. Provided the consultation is brief and preliminary in nature and the judge concludes he/she can be completely fair and impartial, the judge need not make any disclosure.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); People v Moreno, 70 NY2d 403 (1987); Opinions 19-34; 18-84; 17-111; 17-76; 16-30; 15-126; 14-102; 10-56; 08-171/08-174; 07-171.
A full-time judge who previously practiced in the guardianship field and now presides over a dedicated guardianship part has an ailing first-degree relative1 residing in a rehabilitation facility. The judge would like “professional assistance” concerning “Medicaid application and home care planning,” but all his/her contacts in the field “are individuals [the judge] met in [his/her] professional life as an attorney and now as a judge.” Accordingly, the judge asks if he/she may seek guidance from attorneys who may currently have cases pending before him/her.2
A judge must always avoid 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 judge must disqualify himself or herself in any case where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), or in any circumstance required by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14). If disqualification is not mandated under these objective standards, the judge is the “sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
In general, a judge may exercise the same rights to protect or advance his/her direct, personal interests as other similarly situated individuals who are not judges (see Opinion 19-34). We see no reason why a judge should not consult with an attorney concerning legal issues for an ailing relative. In essence, the only real question here is the effect of such consultation, where, as here, the attorney is likely to appear before the judge.
When a judge retains counsel, the general rule during the representation is that the judge is disqualified, subject to remittal after full disclosure on the record, when his/her lawyer, or that lawyer’s partners and associates, appears before the judge (see e.g. Opinions 08-171/08-174; 17-76 [applying the same rule where the judge’s first-degree relative retains counsel who will also “indirectly represent the judge’s personal and professional interests”]).3
At this juncture, however, we understand the judge wishes to seek basic practical advice and legal information concerning a Medicaid application and home care planning for his/her sick relative. If so, we believe two prior lines of opinions provide guidance here. First, we have said a judge may preside in matters involving his/her former matrimonial counsel where the representation was brief and preliminary (see Opinion 17-111). We noted the attorney’s entire representation of the judge lasted only 30 days and consisted of an initial and follow-up consultation, the filing of a notice of appearance and request for judicial intervention (see id.). Similarly, we said a judge may preside over matters involving assistant public defenders even though the new Public Defender preliminarily and briefly represented the judge in a disciplinary proceeding as a private attorney one year earlier (see Opinion 16-30). In Opinion 16-30, the representation entailed preparing and filing a short, non-substantive response to the disciplinary complaint, and engaging in five non-substantive telephone and email communications with the judge. The attorney did not bill the judge for these preliminary activities (see id.). We concluded that the judge’s impartiality could not “reasonably be questioned” in those circumstances when the Public Defender’s office appeared before the judge (id.). Similarly, in Opinion 14-102, we said a judge may preside over matters involving a lawyer who had been appointed as attorney for the child in the judge’s first-degree relative’s child custody case, without disclosing the former representation or offering to disqualify him/herself, because the representation was brief and the attorney’s involvement consisted of interviewing both parents and the child but did not appear in court on the custody matter, and the attorney returned the uncashed retainer checks to the parties. Second, though somewhat farther removed, we advised that a judge whose parents reside in a nursing home need not recuse when that nursing home seeks to have guardians appointed for other Medicaid patients, unless the judge believes he/she cannot be impartial (see Opinion 07-171). We reasoned that the judge’s parents have no substantial or pecuniary interest in the outcome of the appointment of guardians for other patients and, therefore, recusal is not mandated under the rules (see id.).
Here, the judge’s proposed consultations appear to be analogous to situations where we have found that an attorney’s brief and preliminary representation of the judge or the judge’s immediate family members does not raise reasonable questions about the judge’s impartiality. Accordingly, we see no need for disqualification or disclosure merely because the judge has sought brief and preliminary guidance from an attorney on a personal issue related to the judge’s parent. Thus, provided the judge can be fair and impartial, we conclude the judge may seek preliminary advice from attorneys who may have cases pending before the judge and need not make any disclosure.
Of course, should the attorney-client relationship develop beyond this “brief and preliminary” stage, e.g. if the judge retains counsel to represent the judge or his/her first-degree relative in an action, then the judge should seek further guidance (see e.g. Opinions 08-171/08-174; 17-76; 10-56; 18-84). For example, the judge should not then appoint the attorney in pending guardianship cases, as guardianship appointments are in the judge’s discretion and other parties are unable to meaningfully object (cf. Opinion 15-126 [judge may not appoint his/her former partners and associates to fiduciary positions during applicable disqualification period]).
1 Relatives within the first degree of relationship include the judge’s spouse or his/her parent or child by blood or marriage or the spouse of such a person.
2 We assume the judge will be mindful of the time, place, and manner of approaching attorneys who appear before him/her, to prevent any possible appearance of undue pressure or partiality.
3 The judge’s obligations continue, but diminish over time, after the representation is completely terminated and all fees have been paid (see e.g. Opinions 17-76; 10-56; 08-171/08-174).