Opinion 04-42

March 11, 2004

Digest:         A judge who is receiving a pension from his or her former law firm should disqualify him/herself (subject to remittal), in all cases in which the law firm appears, for as long as he or she is receiving the pension.

Rule:            Corradino v. Corradino, 48 N.Y. 2d 894 (1979); 22 NYCRR 100.3(E)(1); 100.3(E)(1)(e); Opinions 94-05 (Vol. XII); 91-120 (Vol. VIII).

Opinion:

         A recently appointed judge seeks the Committee’s advice concerning any requirement of recusal in matters involving the judge’s former law firm. Upon retiring from the firm the judge, pursuant to a contract, became entitled to receive a fixed monthly pension. To the best of the judge’s knowledge the pension is paid by the firm and not by an independent entity. The judge asks “whether, and under what circumstances, the pension requires my disqualification where no other factor does so.”

         At the outset we note that the fact that a judge’s former law firm is appearing in court before the judge is, in and of itself, a sufficient factor to require a judge to exercise recusal without regard to the presence or absence of any other consideration. For, as noted by the Court of Appeals in Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979), “[t]hough there is no canon of judicial ethics which specifically requires disqualification, under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality.”

         Generally, in the absence of other factors, a two-year period of disqualification, subject to remittal, would be appropriate. Opinions 94-05 (Vol. XII), 91-120 (Vol. VIII). Here, however, there are other considerations which, in our opinion, require a continuing period of disqualification. In Opinion 94-05 (Vol. XII), the Committee, in reaffirming a two-year period as being generally appropriate, noted that the inquiring judge had no “financial connections” with his/her former law firm. That is not the situation before us. The pension is an ongoing obligation of the law firm, and nothing in the inquiry informs us when that obligation will terminate. We are thus of the opinion that in light of the indeterminacy of the length of the obligation, the judge should continue to disqualify him/herself in cases where the law firm appears as long as the pension obligation remains in existence.

         It may well be, as the judge states, that only in the unlikely event of the firm’s insolvency might the judge’s interest be affected, and that there is no “realistic possibility that any decision of the [judge’s court] in any case will affect the firm’s financial viability.” Nevertheless, the fact remains that the judge is receiving and will continue to receive a financial benefit form the firm; and that continuing “financial connection” suffices to give rise to a situation “in which the judge’s impartiality might be reasonably be questioned” should that firm appear before the judge. 22 NYCRR 100.3(E)(1). Further, such perception would not be altered where the firm is appearing pro bono or on behalf of an amicus curiae.

         Finally, although we are mindful of the judge’s concern that if he or she “must be automatically recused in all cases which the firm handles, that certainty might in itself encourage some clients to hire the firm and thus assure my recusal,” it is not a concern that compels us to reach a different result. For the same concern could be expressed about hiring as a lawyer someone who is in the prohibited degree of relationship to the judge, the judge’s spouse, or the spouse of such a person. Yet, section 100.3(E)(1)(e) of the Rules Governing Judicial Conduct requires disqualification in such a situation, not withstanding that it might be used just as the judge fears in the situation presented in the inquiry before us. Preventing that from occurring, which would require a probing of the reasons why a client retains a particular law firm, and then passing judgement on those reasons is not within the purview of this Committee.

         In sum, the judge should disqualify him/herself in any case in which his/her former law firm appears, for as long as the judge is receiving a pension from the firm.