April 25, 1996
NOTE: Please consult Joint Opinion 08-171/08-174 before relying on this opinion. To the extent that this opinion is inconsistent with Joint Opinion 08-171/08-174 regarding a judge's disclosure/recusal obligations when his/her personal attorney or his/her personal attorney's partners and associates appear in the judge's court, it is overruled.
Digest: A judge must disqualify himself/herself from presiding over cases being handled by the law firm that has recently represented the judge’s spouse and family, unless after full disclosure, the parties consent and the judge does not doubt his/her ability to be impartial.
Rules: 22 NYCRR 100.3 (E)(1), (F); Opinion 93-61 (Vol XI); Opinion 92-54 (Vol. IX).
A full-time judge has been assigned a case where a party is represented by a law firm, one of whose attorneys, last year, represented the judge’s spouse and the spouse’s family in two separate actions involving the death of the spouse’s parents. In addition, the judge consulted with two other firm lawyers, on two occasions in 1992 and in 1990.
The judge asks if he/she can preside over cases where the law firm in question represents a party even if the same firm attorney who represented the judge’s spouse and family in 1995 and whom the judge consulted on two prior occasions is not a participating lawyer in the currently pending matter.
The Rules Governing Judicial Conduct (22 NYCRR 100.3) provide:
(E) Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned . . .
In view of the recent representation of the judge’s spouse and the spouse’s family by this firm and the prior professional consultations, the judge must disqualify himself/herself in all matters in which that firm appears, unless after full disclosure, all parties consent to the judge’s presiding and the judge does not doubt his/her ability to be impartial (22 NYCRR 100.3[F]). (See also, Opinion 93-61 (Vol XI); Opinion 92-54 (Vol IX).