Opinion 08-12

March 13, 2008

Digest:         A Court Attorney - Referee who hears cases in the Small Claims Assessment Review Part, and who, more than two years ago, hired a non-lawyer employee of a tax reduction company to represent him/her on an appeal of his/her property tax assessment, once the representation ends, need not disclose the relationship nor exercise recusal in any case involving the individual company representative who handled the Court Attorney - Referee’s case or when any other company employee appears before him/her.

Rules:          22 NYCRR 100.6(A); 22 NYCRR 100.3(E)(1); Opinions 97-90 (Vol. XVI); 95-119 (Vol. XIII).

Opinion:

         A Court Attorney-Referee hired a non-lawyer employee of a tax reduction company to represent him/her on an appeal of his/her residential tax assessment. The representation ended almost two years ago. The Court Attorney-Referee is assigned to hear cases in the Small Claims Assessment Review Hearing Part (SCAR). The Court Attorney-Referee asks if he/she must now exercise recusal when either the representative who handled his/her case or when any other employee of the tax reduction company appears before him/her.

         The Committee previously has determined that it will entertain inquiries from Court Attorney-Referees as quasi-judicial officials (see Opinion 95-119 [Vol. XIII]). The Committee also has concluded that Court Attorney-Referees, as quasi-judicial officials, are held to the same ethical standards as judges (see 22 NYCRR 100.6[A]; Opinion 95-119 [Vol. XIII]).

         Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). This Committee previously has determined that a judge who is represented by an attorney in a proceeding (1) should not preside over any matters in which the attorney participates during the period of the attorney's representation of the judge; (2) should recuse him/herself, subject to remittal, for two years after the representation ends; and (3) after such two year period ends, the judge should disclose that the attorney represented the judge. If a party objects, the judge should seriously consider exercising recusal and should do so unless the judge concludes that the objection is frivolous, in bad faith, or wholly without merit (see Opinion 97-90 [Vol. XVI]).

         In the present inquiry, the employee of the tax reduction company that represents property owners in SCAR is not an attorney. And, unlike attorneys in general, such an employee, according to the inquirer, represents more than 1,000 clients. The inquirer also indicates that more than 55,000 SCAR cases were filed during the last year, and of those, more than 11,000 were filed by the company that employs the individual who represented him/her almost two years ago. The inquirer is assigned to hear and decide 50 to 100 of these thousands of matters each day. The inquirer further states that he/she hired the tax reduction company representative by signing a form and returning it by mail. All communications between the company and the inquirer were accomplished by mail. The inquirer did not attend the hearing during which his/her appeal was decided.

         In the Committee’s view, there is a significant difference in the nature of the relationship between an attorney and his/her client from that of a property owner and his/her non-lawyer tax reduction company representative. The Committee concludes, therefore, that applying the same rules with respect to disqualification, disclosure, and recusal in both circumstances is unwarranted, and would disrupt and otherwise adversely impact both the SCAR Part’s and the inquirer’s caseloads.

         In the present inquiry, given the tenuous and non-confidential relationship between the Court Attorney-Referee and the tax reduction company in general, as well as the specific company’s individual representative who handled the Court Attorney-Referee’s case, once the representation ends and the Court Attorney- Referee has paid any fees owed, he/she would be disqualified only during the course of the representation. Once the representation ends, the Court Attorney referee would not be disqualified from presiding and would not be required to disclose the relationship when neither the individual company representative who handled his/her case appears before him/her or when any other company employee appears before him/her.