Opinion 03-57

June 12, 2003

Digest:         A part-time lawyer-judge should not preside over matters handled by an attorney who is a former employee of the judge’s private law firm for a two-year period after the judge’s association with the attorney has ended. Such disqualification is subject to remittal.

Rule:            22 NYCRR 100.3(E)(1); 100.3(F); Opinion 91-143 (Vol. VIII).

Opinion:

         A part-time lawyer-judge asks if it is ethically permissible to preside over matters handled by an attorney who is a former employee of the judge’s private law firm.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. In Opinion 91-143 (Vol. VIII), the Committee concluded that a judge’s impartiality might reasonably be questioned if the judge presides over matters handled by an attorney who was recently associated with the judge’s law firm. The Committee advised that the judge must disclose the prior relationship and recuse him/herself for a two- year period after the judge’s association with the attorney ends. The judge in the present inquiry should do the same. The judge’s disqualification is, however, subject to remittal pursuant to section 100.3(F) which provides, with certain exceptions, that a judge who is disqualified may continue to preside over the case if the parties, without the judge’s participation, all agree that the judge should not be disqualified and the judge believes that he or she will be impartial and is willing to participate. Any such agreement must be incorporated in the record of the proceeding. 22 NYCRR 100.3(F).