October 29, 2020
Digest: A full-time judge may consult with an attorney regarding the judge’s possible medical malpractice case, even if the attorney regularly appears before the judge. If the consultation is more than strictly brief and preliminary, the judge will ordinarily be disqualified, subject to remittal where permitted, in matters involving the attorney and others from the same law office.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 19-91; 19-34; 17-111; 16-30; 08-171/08-174.
A full-time judge, who suffered adverse results following surgery, recused from a medical malpractice case on learning the plaintiff’s allegations described a similar experience, albeit with a different physician. The judge’s entire involvement with the case, prior to recusal, consisted of setting dates for disclosure and depositions at two discovery conferences. The judge asks if it is permissible to contact plaintiff’s counsel about the judge’s own possible medical malpractice case.
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 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]).
In general, a judge may exercise the same rights to protect or advance their direct, personal interests as other similarly situated individuals who are not judges (see Opinions 19-91; 19-34). Clearly, the judge may consult with an attorney concerning his/her personal legal issues. We see no impropriety in doing so here. The more pressing question is the effect of such consultation, where 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 their lawyer, or that lawyer’s partners and associates, appears before the judge (see Opinion 08-171/08-174).
At this time, we understand that the judge wishes to consult plaintiff’s attorney about a possible lawsuit. We said in previous opinions that where the representation is truly brief and preliminary, the judge may continue to preside over matters involving the attorney (see Opinions 19-91; 17-111; 16-30). In Opinion 17-111, a judge’s former matrimonial counsel represented him/her for only 30 days including an initial and follow-up consultation, filing a notice of appearance and request for judicial intervention. In Opinion 16-30, the representation entailed preparing and filing a short, non-substantive response to a disciplinary complaint, and engaging in five non-substantive telephone and email communications with the judge.
Here, it is unclear whether the judge will merely consult with the attorney or ultimately retain them to commence a lawsuit. If the consultation proves to be brief and preliminary in nature, the judge may continue to preside over cases in which the attorney appears, and we see no need for disqualification or disclosure merely because the judge has sought brief and preliminary guidance (see Opinion 19-91). If the attorney-client relationship develops beyond this “brief and preliminary” stage, then the judge should review our prior opinions concerning their disqualification obligations and seek further guidance as needed (see id.).
Accordingly, the judge may seek counsel on the possibility of filing their own medical malpractice case, but must abide by the obligations outlined in Opinion 08-171/08-174 and its progeny should the judge retain the attorney. Again, we note the judge will ordinarily be disqualified, subject to remittal where permitted, in matters involving the attorney and others from the same law office if the consultation is more than strictly brief and preliminary.