Opinion 08-142

September 11, 2008

Digest:         A judge must disqualify him/herself in any case in which the attorney currently representing the judge in a contentious, personal civil matter appears. Although such disqualification is subject to remittal, given the circumstances of the personal civil matter, the judge should seriously consider whether accepting remittal under the circumstances described is the best and most prudent course of action.

Rules:          People v Moreno, 70 NY2d 403 [1987]; 22 NYCRR 100.3(E)(1); 100.3(F); Opinions 08-10; 91-51 (Vol. VII); 91-10 (Vol. VII]).

Opinion:

         A judge, who is involved in a contentious, personal civil matter in a court located in another county from that in which the judge presides, is represented by an attorney who also occasionally appears before him/her in criminal matters. The judge advises that, in accordance with §100.3(E)(1) and (F) of the Rules Governing Judicial Conduct, he/she intends to disclose the attorney/client relationship when the attorney appears before him/her and to accept a remittal if the District Attorney, counsel and the parties all consent to him/her continuing to preside. The judge asks whether this procedure is proper in these circumstances.

         The Rules Governing Judicial Conduct require a judge to disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). In circumstances similar to those in the present inquiry, the Committee has previously advised that a judge should not preside in any case in which either the law firm or a member of the law firm representing the judge in his/her pending personal injury lawsuit appears before the judge (see Opinions 08-10; 91-10 [Vol. VII]). Such disqualification is, however, subject to remittal (see 22 NYCRR 100.3 [F]).

         Accordingly, the judge in the present inquiry also must disqualify him/herself when the attorney who is representing him/her in a personal civil matter appears before the judge. However, while such disqualification would clearly be subject to remittal, it is the Committee’s view that the judge should seriously consider whether accepting remittal in such highly contentious circumstances is the best course to take. Whether to preside in a particular case “. . . is a matter confined to the conscience of the particular judge” (Opinion 91-51 [Vol. VII]; see also Opinions 08-10; People v Moreno, 70 NY2d 403 [1987]). Therefore, the inquiring judge must ultimately determine whether accepting remittal under the circumstances described is the best and most prudent course of action given the practical distractions that may follow. Having said that, however, the Committee nevertheless strongly believes that where a judge has made full disclosure, the parties and attorneys have consented following the procedure required by the Rules Governing Judicial Conduct, the judge believes that he/she can be impartial, and the judge is willing to preside, the judge may accept a remittal (see 22 NYCRR 100.3[F]) and preside.