Opinion 05-91

September 8, 2005

Digest:         Notwithstanding that the judge has been told that his/her testimony will not be needed in a litigation involving a former client of the judge who is an attorney, the judge should exercise recusal in matters involving the attorney until the litigation is concluded. Thereafter, disqualification shall be within the discretion of the judge in the exercise of conscience.

Rule:            22 NYCRR 100.2; 100.3(E)(1); Opinions 89-13 (Vol. III); 92-01 (Vol. XI); 99-81 (Vol. XVIII).

Opinion:

         A judge who sits in the Supreme, County and Family Courts inquires whether the judge is disqualified from presiding over cases in those courts which involve an attorney whom the judge represented prior to ascending the bench. Specifically, the judge represented an attorney and his/her spouse in a real estate matter which resulted in litigation. The judge’s representation terminated when it became a matter of litigation. Successor counsel was at that juncture selected by the former clients. At one point it appeared that the judge would be a witness in the litigation involving the former client. Thus, upon becoming a judge the inquirer took the appropriate position of disqualification in all cases involving the former client. Recently, the judge has been advised by successor counsel that the judge’s testimony will not be needed in the litigation. Under all of the circumstances, the judge inquires as to whether his/her recusal is still required, and, if so, for how long.

         Notwithstanding that more than two-years have elapsed since the representation terminated, and that the judge has been informed that his/her testimony will not be required at the forthcoming trial, it is the opinion of the Committee that the better course of action would be for the judge to recuse in matters involving the former client until such time as the litigation is concluded. While it is understood that the judge’s testimony is said not to be needed, the judge retains the status of a possible witness, and certainly a change in view by the successor attorney prior to trial so as to require the judge’s testimony is in no way foreclosed. Under such circumstances, there could well be an appearance of impropriety should the judge preside in matters involving the former client while that possibility remains open. 22 NYCRR 100.2. Following the conclusion of the litigation the decision whether to continue to recuse, or to disclose the prior representation, is a matter for the exercise of discretion and within the conscience of the judge. See Opinion 99-81 (Vol. XVIII); 92-01 (Vol. XI); 89-13 (Vol. III).