Opinion 01-71

June 27, 2001

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion.

Digest:         Subject to remittal of disqualification, a part-time lawyer-judge should recuse himself or herself where an attorney appearing before the judge as an attorney had been a client of the judge's law firm within the preceding two years. If more than two years have elapsed, the judge may preside after full disclosure on the record, and in the absence of a meritorious objection.

Rule:            22 NYCRR 100.3(E)(1); 100.3(F); Opinion 97-85 (Vol. XVI).

Opinion:

         A part-time judge who also is a practicing attorney had represented an attorney in a legal matter. The legal matter was concluded and the judge no longer represents the attorney. During the time when the judge represented the attorney, the judge disclosed the relationship to all parties whenever the attorney/client appeared in the judge's court. Now that the representation has ended, the judge asks whether recusal is required when the attorney/former client appears before the judge as an attorney.

         A judge must disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Thus, in response to a similar inquiry, the Committee advised that a part-time lawyer-judge should exercise recusal when a party appearing in the judge's court had been a client of the judge's law firm within the preceding two years, subject to remittal of disqualification upon the consent of all parties. 22 NYCRR 100.3(F). If, however, more than two years have elapsed, the Committee advised that the judge could preside if the judge believed he or she could be impartial, after full disclosure on the record and in the absence of a meritorious objection. Opinion 97-85 (Vol. XVI). In evaluating an objection, the Committee suggested that the judge consider such factors as the amount of time elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety. It is our view that the same standards and guidelines should apply when the attorney/former client appears in the judge's court as an attorney. The same considerations are present and thus the response of the judge should be the same.