Opinion 00-89
October 19, 2000
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: (1) Recusal is required where the law firm appearing before the judge on behalf of a party, currently represents the judge and the judge's spouse in a pending personal injury automobile accident case, but recusal is not required in a proceeding in which records and documents are sought from hospitals or other entities (who are not parties to the proceeding), who are represented by the same law firm, unless the subpoena or order to show cause with respect to such records is being contested or is the subject of litigation. (2) Recusal is not required where an attorney appearing before the judge had formerly been an associate in the same law firm where the judge had been an associate and at the same time.
Rule: 22 NYCRR 36.1(a); 100.0(C); 100.3(E); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinions 97-135 (Vol. XVI); 97-90 (Vol. XVI); 94-33 (Vol. XII); 91-10 (Vol. VII).
Opinion:
A Family Court judge asks a series of questions concerning possible disqualification arising out of the judge's past employment or other association with certain lawyers or law firms that might appear before the judge.
First, the judge informs the Committee that a former colleague of the judge with whom the judge worked for six years as a fellow associate in a law firm, has now joined the county Public Defender's office, serving in Family Court. Is recusal required in any matter in which the former co-associate is now involved as a Public Defender?
The Committee does not believe that the circumstances described create a situation "in which the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(D)(1). Presumably, the judge believes that he/she could be impartial in such a situation. If so, recusal is not required.
Second, the judge states that the judge and the judge's spouse are plaintiffs in a pending personal injury automobile accident case in which the judge had been injured. Representing them is a law firm that had merged with the judge's former law firm. Is recusal required when that law firm appears before the judge representing a party in the proceeding?
In Opinion 91-10 (Vol. VII), the inquiry also involved a judge who was currently being represented by a law firm in an automobile accident law suit. The Committee advised that "the judge should not handle any cases in which either the law firm or a member of that firm appears." See, also Opinions 97-135 (Vol. XVI); 97-90 (Vol. XVI); 94-33 (Vol. XII). The present situation appears to be identical. Thus, recusal is in order. (Should the judge believe that notwithstanding the current legal representation by the firm in a matter of financial interest to the judge and the judge's spouse, remittal is possible since none of the non-waivable grounds for remittal specified in section 100.3(E) are implicated, strict adherence to the procedures for remittal set forth in section 100.3(F) of the Rules is essential).
Also as to that law firm, the judge notes that it represents numerous hospitals and other health care providers in the county. Lawyers frequently present to Family Court judges orders to show cause, requests, demands and subpoenas for documents and witnesses, involving hospitals, physicians and other health care providers who are not parties to the pending actions, but who have had an involvement in the care, counseling and treatment of children who are the subjects of Family Court matters. The judge asks whether he/she is precluded from signing such subpoenas or orders to show cause.
The Committee is of the opinion that disqualification in such matters is not required. That is, the fact that the recipient of the subpoena or the subject of the order to show cause may be an entity represented by the law firm that represents the judge and the judge's spouse in a pending action does not require recusal, since the law firm is not representing a party to the proceeding before the judge. However, if either the order to show cause or the subpoena is drawn into issue in the proceeding, or becomes a subject of litigation, then recusal is advisable, subject to remittal as set forth in section 100.3(F) of the Rules.
Finally, the judge states that the judge's spouse's sister's husband's step-brother's son is a lawyer who practices in Family Court. Is the judge prohibited from appointing him in Family Court cases?
There is no prohibition with respect to such an appointment. The attorney in question is not a person within the fourth degree of relationship to the judge or the judge's spouse. Thus, section 100.3(E)(1)(e) of the Rules Governing Judicial Conduct concerning disqualification in such instances does not apply. Nor is the attorney a person who is related to the judge or related to the judge by marriage, within the sixth degree of relationship. Accordingly, section 36.1(a) of the Rules of the Chief Judge prohibiting certain fiduciary appointment of relatives of judges (but not appointments under Family Court Act §243), does not preclude appointment of the attorney. Indeed, it does not appear that the person in question is a relative of the judge or the judge's spouse within the meaning of the Rules Governing Judicial Conduct. See 22 NYCRR 100.0(C).