Opinion 04-51

April 22, 2004

Please Note: This opinion has been modified by Opinion 20-126 “to make clear that the judge is disqualified, subject to remittal.”  See Opinion 20-126 fn 1.

Digest:         A newly-elected full-time judge (1) should recuse in matters where attorneys who appear before the judge are also the attorneys in pending contingency fee cases which had been referred by the judge to them when the judge was practicing law; (2) should disclose and offer to recuse where attorneys who appear before the judge are renting office space in a building owned by the judge’s spouse. (3) need not disclose the fact that the judge’s spouse owns stock in a subsidiary of a corporate party.

Rules:          22 NYCRR 100.3(E)(1); 100.3(E)(1) (c); 100.3(F); Opinion 04-17.

Opinion:

         A recently-elected full-time Surrogate and County Court judge inquires with respect to recusal in certain situations.

         In winding down his/her law practice, the judge had referred several personal injury cases to attorneys, and expects to collect a portion of contingency fees for services the judge rendered in each case prior to assuming judicial office, assuming each of those cases is concluded successfully. The judge inquires as to his/her judicial obligations when those attorneys appear before the court while those matters are still pending.

         In our opinion, the judge should exercise recusal while those cases are pending. Given the existing financial linkage between the judge and the attorneys, the judge’s impartiality with respect to matters in which the lawyers are appearing might reasonably be questioned. 22 NYCRR 100.3(E)(1). Such disqualification is subject to remittal. 22 NYCRR 100.3(F).

         Second, the spouse of the judge owns an office building where several attorneys rent office space. Here, too, if these attorneys appear before the judge, he/she should disclose the relationship to the parties and offer recusal, and serve only if both sides consent in writing or in open court on the record. 22 NYCRR 100.3(E)(1) and (F).

         Finally, the judge informs the Committee that his/her spouse owns stock in a bank that also owns another bank that is frequently a trustee or an executor in Surrogate Court proceedings. As recently determined by the Committee, neither disclosure nor recusal is required under section 100.3(E)(1)(c) of the Rules Governing Judicial Conduct where the ownership interest is in a subsidiary of a corporate litigant and not in the party itself. Opinion 04-17.