Opinion 05-32

April 21, 2005

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion.

Digest:         (1) A part-time judge who practices law, and is presiding in a drug treatment court must disclose, on the record, the prior legal representation of a person who appears before the judge as a participant in the drug court and may proceed, provided that the judge has taken into consideration all relevant circumstances that might bear on whether the judge’s impartiality might reasonably be questioned; (2) a part-time judge who practices law and is representing a client in Family Court may preside in a drug treatment court where the participant is the pregnant girlfriend of the adversary party in the Family Court proceeding, provided that the judge believes he/she can be fair and impartial.

Rule:            22 NYCRR 100.3(E)(1). Opinions 97-85 (Vol. XVI); 95-05 (Vol. III); 92-14 (Vol. IX); 92-01 (Vol. IX).

Opinion:

         A part-time judge inquires whether former clients can participate in the drug treatment court where the judge presides. This Committee has previously opined that “a judge should disqualify him/herself where a party before the judge had been a former client within the preceding two years, subject to remittal of disqualification. If more than two years have elapsed, the judge may preside after full disclosure on the record and in the absence of a meritorious objection.” Opinions 97-85 (Vol. XVI); 92-14 (Vol. IX), 92-01 (Vol. IX).

         However, in the drug court context where the proceedings are intended to be non-adversarial, the Committee is of the opinion that when a former client of a judge appears before the judge as a participant in a drug treatment court, the judge need not immediately disqualify him/herself, unless the judge personally questions his/her ability to act fairly and impartially in the matter. In the absence of such doubt, the judge must consider all relevant factors to determine if disqualification is appropriate, including, but not limited to, the nature of the instant proceeding; the nature of the prior representation of the client; the length of time since the last representation; the amount of work done for the client; the amount of the fee; whether the judge acquired knowledge of facts concerning the defendant that would be of significance in a drug court proceeding; whether a social relationship exists between the judge and the former client; and whether there are any special circumstances that may create a likely appearance of impropriety. If, after considering all of the circumstances, the judge personally does not conclude that disqualification is required, the judge should make full disclosure on the record and preside. However, the judge should not preside over any case in which the offense that brought the party before the judge was a matter that the judge personally handled as an attorney.

         The inquiring judge also informs the Committee that he/she is representing a client in Family Court where the adversary party’s girlfriend who is pregnant is a participant in the drug treatment court over which the judge presides. The judge asks whether “this would present any ethical problem.” In our view the judge may preside, as the drug treatment court judge, in a matter in which the drug treatment court participant is in a personal relationship with the opposing party in a case involving a current client of the judge, provided that the judge believes that he/she can be fair and impartial. 22 NYCRR 100.3(E)(1).