January 28, 1999
Please Note: This opinion has been modified or overruled to the extent it suggests a judge’s obligation completely ends when the litigation terminates. See Opinion 20-63.
Digest: Disclosure is not required where a medical malpractice action brought by the judge on behalf of the judge's infant child has been concluded and an attorney who represented a defendant in that action is now appearing before the judge.
Rule: 22 NYCRR 100.3(E)(1); Opinion 91-52 (Vol. VIII).
An appellate court judge seeks the advice of the Committee as to the propriety of sitting on appellate panels in which one of the appellate attorneys represented a party against whom the judge previously brought a medical malpractice action concerning the judge's minor child. The action has been resolved and accordingly the judge is of the view that there would no longer be any appearance of impropriety in hearing such appeals.
The Committee concurs. In Opinion 91-52 (Vol. VII), while the malpractice action was pending, the Committee advised the same inquirer that disclosure was required, and in the event of objection there should be recusal. The Committee went on to say that "Disclosure should continue to be made until the disposition of the malpractice case." This has now occurred and, therefore, in the view of the Committee, an appellate appearance by an attorney who represented a defendant in the now concluded malpractice action does not constitute a circumstance "in which the judge's impartiality might reasonably be questioned . . ." 22 NYCRR 100.3(E)(1). Thus, in our opinion, neither disclosure nor recusal is required.