Opinion 05-147

January 26, 2006

Digest:         (1) A Surrogate Court judge must disqualify him/herself, subject to remittal, for two years after leaving a law firm when the firm represents a party in a case before the judge, even if all that remains in the case is to make a final distribution and to file a final accounting with the court. (2) A Surrogate Court judge must exercise recusal in all cases, without the possibility of remittal, where he/she drafted or witnessed a will offered for probate.

Rules:          22 NYCRR 100.2; 100.3(E)(1); 100.3(E)(1)(b)(i), (iii); 100.3(F); Opinions 01-06 (Vol. XX); 94-05 (Vol. XII).

Opinion:

         A recently-elected Surrogate Court judge asks if he/she is disqualified from presiding in currently pending cases wherein the judge’s former law firm represents a party even if the only remaining actions to be taken are to make a final distribution and to file a final accounting with the court. In addition, the judge asks whether he/she is disqualified from presiding in cases where the judge drafted or witnessed the testamentary document before the court for probate even after two years have elapsed since the judge’s involvement in the matter.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.2; 100.3(E)(1). In the past this Committee has noted that, because law partners and associates often develop close professional and personal relationships, a judge’s impartiality can reasonably be questioned when a former law partner or associate appears before the judge. Opinions 01-06 (Vol. XX); 94-05 (Vol. XII). Thus, the Committee has advised that a judge must disqualify him/herself for a period of two years after the judge has left a law firm when the firm represents a party in a case before the judge. Id. In the present inquiry, that conclusion applies even if all that remains is to make a final distribution and to file a final accounting with the court. Such disqualification, however, is subject to remittal. 22 NYCRR 100.3(F).

         With respect to the inquirer’s second question, the Rules Governing Judicial Conduct provide that a judge’s impartiality may reasonably be questioned, and disqualification is therefore required, where the judge has served as a lawyer in the matter in controversy or has been a material witness concerning the matter. 22 NYCRR 100.3(E)(1)(b)(i), (iii). The Rules further provide that remittal of disqualification is not available in such circumstances. 22 NYCRR 100.3(F). The inquiring judge, therefore, must exercise recusal in all cases where he/she drafted or witnessed a will being offered for probate regardless of the length of time that has passed since the judge’s involvement in the matter.