Opinion 07-128

September 6, 2007

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A judge is disqualified, subject to remittal, when an attorney who represents the judge’s adult child appears in the judge’s court. For a period of two years after the representation ends, the judge must disclose that the attorney represented his/her adult child. If a party objects to the judge presiding, the judge must exercise his/her discretion in determining whether recusal is warranted.

(2) The judge should refrain from appointing the attorney as a fiduciary or as counsel while he/she represents the judge’s adult child, and for a reasonable period of time after the representation ends.

Rules:          22 NYCRR 36.0; 22 NYCRR 100.2(A); 100.2(B); 100.3(C)(3); 100.3(E); 100.3(F); Opinions: 05-152; 02-56; 00-68 (Vol. XIX); 99-47 (Vol. XVII); 97-15 (Vol. XV); 92-60 (Vol. IX); 92-31 (Vol. IX).

Opinion:

         The inquiring judge was elected to Surrogate’s Court and serves as an Acting Supreme Court Justice. The judge’s adult child recently retained an attorney to prepare and supervise execution of his/her will and related documents. Three years earlier, the judge and the judge’s spouse retained the same attorney for the same purpose. For a period of two years thereafter, the judge exercised recusal when the attorney appeared in the judge’s court. Because the judge’s adult child has now retained the same attorney, the judge asks the following questions:

(1) Must the judge disclose and/or exercise recusal when the attorney appears before the judge in uncontested proceedings in the Surrogate’s Court and in the Supreme Court? If yes, for how long?

(2) Must the judge disclose and/or exercise recusal when the attorney appears before the judge in contested proceedings in Surrogate’s Court and Supreme Court? If yes, for how long?

(3) Must the judge refrain from appointing the attorney, who is otherwise eligible for appointment pursuant to Part 36 of the Rules of the Chief Judge, as counsel or as a fiduciary? If yes, for how long?

         Pursuant to the Rules Governing Judicial Conduct, a judge must act all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). In particular, the judge must not allow family relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]). Further, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). This Committee previously has advised that a judge is disqualified from presiding when an attorney, who is currently representing the judge’s child, appears in the judge’s court (see 22 NYCRR 100.3[E]; Opinions 02-56, 00-68 [Vol. XIX], 97-15 [Vol. XV]; 92-60 [Vol. IX]). This disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]; Opinion 02-56).

         In Opinion 92-31 (Vol. IX), this Committee advised that a judge could preside in a case where one of the attorneys represented the judge’s adult son in a misdemeanor case two years ago, but should disclose the relationship on the record. And, where a judge’s spouse retained a law firm that occasionally appears in the judge’s court to represent him/her in a will contest, the Committee advised that the judge should disclose the spouse’s relationship with the law firm for a two-year period after the representation ends, but need not disqualify him/herself if the judge feels that he/she can be fair and impartial (see Opinion 99-47 [Vol. XVII]).

         In the present inquiry, therefore, the judge is disqualified from presiding in contested and uncontested matters when the attorney who represents the judge’s adult child appears in the judge’s court (see 22 NYCRR 100.3[E]; Opinions 02-56, 00-68 [Vol. XIX], 97-15 [Vol. XV]; 92-60 [Vol. IX]). Such disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]; Opinion 02-56), except when a party appears pro se (see Opinion 05-012). In addition, for two years after the representation ends, the judge should disclose that the attorney represented the judge’s adult child when the attorney appears in the judge’s court (see Opinion 99-47 [Vol. XVII]; 92-31 [Vol. IX]). If a party objects to the judge presiding, the judge must exercise his/her discretion in determining whether recusal is warranted (id).

         As for judicial appointments, a judge shall exercise the power of appointment “impartially and on the basis of merit” (22 NYCRR 100.3[C][3]). Part 36 of the Rules of the Chief Judge, which generally governs fiduciary appointments, similarly provides that a judge must appoint fiduciaries “ . . . on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case” (22 NYCRR 36.0). Accordingly, in the present inquiry, while the attorney is representing the judge's adult child, and for a reasonable time after the representation ends, the judge should refrain from appointing the attorney as a fiduciary or counsel (see Opinion 97-15 [Vol. XV]).