Opinion 05-124

December 8, 2005

Please Note: (1) Opinion 12-154 has abolished the requirement that a judge must disclose and/or recuse whenever a relative of his/her co-judge appears. Please review Opinion 12-154 for more information.
(2) Modified by Opinion 07-14: "To the extent that previous opinions of this Committee, including Opinions 05-124, 97-46 (Vol. XV), 94-20 (Vol. XII), and 90-43 (Vol. V), appear to require the co-judge(s) to disqualify themselves, rather than to disallow appearance by the lawyers, those opinions are hereby clarified or modified."
(3) This opinion has been modified by Opinion 09-100 to the extent that it suggests that a mere tenancy or office-sharing agreement, without more, makes an attorney the "associate" of a part-time judge under rule 100.6(b)(3). Please consult Opinion 09-100 before relying on this opinion.

Digest:         (1) Judiciary Law §471 prohibits any lawyer “connected in law business with a judge” from acting as an attorney in the judge’s court, which likewise bars a law firm with which another judge of the court has been associated and from which he/she rents space.
(2) 22 NYCRR Sec.100.3(E)(1) of the Rules Governing Judicial Conduct does not obligate a full-time City Court Judge to recuse him/herself where the lawyer-brother of his/her co-judge appears for a party, but should disclose the relationship on the record to both parties and counsel.

Rules:          Judiciary Law § 471; Matter of v. State Commission on Judicial Conduct, 56 NY2d 365(1982); 22 NYCRR 100.3(B)(1), 100.3(E)(1); 100.6(B)(3); Opinions 90-111 (Vol. V); 92-23 (Vol. IX); 94-20 (Vol. XII); 95-15 (Vol. XIII); 98-53 (Vol. XVI).

Opinion:

         A full-time City Court judge informs the Committee that his/her part-time co-judge is an “associate attorney in a local law firm,” one partner being the co-judge’s brother. The co-judge has informed the inquirer that he/she “is going to be segregating [him/herself] from the firm (i.e., separate phone lines, secretaries, entrances, etc.) However, it is still [his/her] intention to remain in the same building (which is solely the law firm) and rent space from the firm.” Seeking the Committee’s advice, the inquiring full-time judge asks whether, in light of the co-judge’s “plans, on still renting space from the firm, and thereby continuing a fiscal relationship between the firm and my [Co-] Judge, can members of the firm appear before me? Lastly, can [his/her] brother appear before me without raising an air [of] impropriety?”

         In Opinion 94-20 (Vol. XII), the Committee had before it virtually the identical situation. There, the part-time judge who was also associated with a local law firm, inquired whether a change of the employment relationship to one of landlord-tenant, whereby the judge would pay rent to the owner of the firm, would enable the firm to practice in the judge’s court. This Committee concluded that, notwithstanding the changes, there would not be an alteration in the “public perception that the judge remains associated in the practice of law with that firm.” Opinion 94-20 (Vol. XII):

From the submission, it appears that there would be a minimal change in the judge’s legal arrangement, namely a cessation of employment with the firm, a removal of the judge’s name from the firm letterhead, and a tenancy between the firm and the judge. But this would not alter the public perception that the judge remains associated in the practice of law with that firm.

Under the proposed change to an office space - sharing arrangement the judge and the members of the firm would continue to have a business relationship, which is equivalent at least in terms of public perception to the continuation of an association with the firm, and therefore, pursuant to the applicable rule, since the office association would continue, it disqualifies the judge, or any judge of the same court from presiding over any matter in which the members of the firm appear. (See Opinion 89-07, Vol. III). The situation would be different, if, as the judge suggests, the judge does not continue any association with the firm and seeks office quarters elsewhere.

         The Committee cited section 100.5(f) of the Rules Governing Judicial Conduct which was revised in 1996 in wording but not substance and it now exists as section 100.6(B)(3) of the Rules. It reads as follows:

         [A part-time judge]

(3) shall not permit his or her partners or associates to practice law in the court in which he or she is a judge, and shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law, but may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law;

         It is thus clear that the inquirer’s co-judge is under an obligation to prohibit the practice of his/her law firm in the City Court, assuming that the inquirer’s description of the relationship as related by the co-judge is accurate. But, is the inquirer, as a full-time judge, likewise obligated to prohibit such appearances before him/her since section 100.6(B)(3) by its terms sets forth only the obligations of part-time judges? We are of the opinion that the inquiring full-time judge is likewise under such an obligation, and that the obligation is statutory in origin. Section 471 of the Judiciary Law states:

The law partner . . . of a judge shall not practice before him , as attorney or counselor in any cause, or be employed in any cause which originated before him. A law partner of, or person connected in law business with a judge, shall not practice or act as an attorney or counselor, in a court, of which the judge is, or is entitled to act as a member, or in a cause originating in that court; except where the latter is a member of a court, ex officio, and does not officiate or take part, as a member of that court in any of the proceedings therein. (Emphasis added.)

         While the statute is directed specifically to the conduct of attorneys, its implementation is not reserved to part-time judges. Indeed, to fulfill their adjudicative responsibilities all judges - part-time and full-time - are commanded to “be faithful to the law.” 22 NYCRR 100.3(B)(1) Accordingly, if the inquirer concludes that the relationship is as described, section 471 prohibits appearances by the law firm before any judge of the court. Of course, as in Opinion 94-20 (Vol. XII), “[t]he situation would be different if the judge does not continue any association with the firm and seeks office quarters elsewhere.”

         In considering this question, the Committee is aware that the inquiry before us is not by the part-time co-judge. Nevertheless, it is useful to note, as stated, that Judiciary Law § 471 also governs the conduct of the co-judge. This was made abundantly clear by the Court of Appeals when it accepted the State Commission on Judicial Conduct’s determination to remove a part-time judge in Matter of Harris v. State Commission on Judicial Conduct, 56 NY 2(d)365 (1982). That case involved, in part, appearances in a City Court by the judge’s law partner. As the Court stated: “It was thus improper and a violation of sections 16 and 471 of the Judiciary Law for petitioner to appear in Lockport City Court, or to have allowed his partner to have appeared in either division of the court.” 56 NY 2d at 367. (We also noted that section 100.4(D)(1)(c) of the Rules Governing Judicial Conduct provides that “a judge shall not engage in financial or business dealings that involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.” 22 NYCRR 100.4(D)(1); see also Opinion 98-53 [Vol. XVI.])

         None of the above necessarily answers the judge’s question with regard to the co-judge’s brother. That is, if the connection between the co-judge and the brother’s law firm be severed completely in the event the co-judge follows the advice stated in Opinion 94-20 (Vol. X11), and he/she acquires new offices, neither statute nor rule would bar the brother from appearing in the inquiring full-time judge’s court (but not, of course, before the co-judge only). However, the absence of a limitation on the brother’s practice of law under such circumstances does not itself determine whether the inquiring judge must recuse if the co-judge’s brother appears before the inquiring judge.

         Some Committee opinions have addressed the question of appearances before a judge by the relative of a co-judge and whether there is a recusal obligation under section 100.3(E)(1) of the Rules Governing Judicial Conduct, which requires disqualification in any circumstance where the presiding judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In Opinion 92-23 (Vol. IX), the Committee stated that a part-time judge in a court with two part-time judges may preside where one attorney is the brother of the other judge, but must disclose this fact and disqualify himself or herself if any of the parties objects. But, here, one of the judges is a full-time judge, thus raising the question of whether a different rule applies to a full-time judge in multi-judge courts which include a full-time and part-time judges. In Opinion 90-111 (Vol. V), the Committee concluded that where the judges serve on a multi-judge court that has more than two judges there is no affirmative duty of disclosure that a fellow judge is the spouse of the attorney who is appearing. Then, in Opinion 95-15 (Vol. XIII) the Committee modified Opinion 90-111 (Vol. V) as follows:

There does not appear to be any reason why a different rule as to recusal should be required in the case of a two-judge court, particularly a county-level court and not a local or village court, unless the other judge doubts his or her ability to be impartial. However, because of the possible perception of a particularly close relationship where only two judges serve in the same courts, the judge should disclose to the parties the lawyer’s spousal relationship to the judge’s colleague, but recusal would not be required even upon the opposing party’s application unless the particular circumstances otherwise warrant.

         We do not believe that our reference to “local or village court” precludes us from applying our determination in Opinion 95-15 (Vol. XIII) to the present situation, in that it was unlikely that the reference to “local court” was intended to include those relatively few courts (i.e. some city courts) that had full-time judges as well as part-time judges.

         Accordingly, we now are of the view that the same conclusion should apply to two-judge courts where one of the judges is a full-time judge. (As stated above, this presumes that the association has been totally severed, including the termination of a landlord-tenant relationship). The inquiring judge should disclose the relationship in any case in which the brother appears, but recusal is not required “unless the particular circumstances otherwise warrant.” Opinion 95-15 (Vol. XIII).