Opinion 08-17

January 31, 2008

Digest:         When the accounting firm at which a judge’s personal accountant works is either an expert witness or a party in the judge’s court, the judge should disclose the relationship and offer to recuse, subject to remittal, where the parties and lawyers consent.

Rules:          22 NYCRR 100.2; 100.3(E)(1); Opinions 06-28; 06-22; 04-78; 99-146 (Vol. XVIII); 95-35 (Vol. XIII); 91-56 (Vol. VII).

Opinion:

         A Justice of the Supreme Court advises that the firm, at which his/her personal accountant works, is a party in a collection lawsuit assigned to the inquirer, and that in another case on his/her docket, a member of the firm has filed an expert affidavit. The personal accountant has prepared tax returns for the inquirer and his/her family members, and the Committee is advised that the judge’s personal accountant will likely continue to do so in the future. The inquirer also says he/she has already disclosed in the case in which the accounting firm appeared as a party and the parties remitted any disqualification issue, but now asks whether disclosure and disqualification, subject to remittal, is, in fact, required in either instance.

         The Rules Governing Judicial Conduct provide that a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Section 100.2 of the Rules further requires a judge to avoid the appearance of impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary. 22 NYCRR 100.2.

         The Committee has previously examined a judge’s ethical duties when the judge’s personal attorney is “counsel” to a law firm. It concluded that when the lawyer has an ongoing relationship with the firm, rather than involvement in a few discrete cases, the judge must disclose and exercise recusal, subject to remittal, when that lawyer’s firm appears in the judge’s court. Opinions 06-22; 95-35 (Vol. XIII). On the other hand, when the judge’s personal attorney has weaker ties to a firm appearing before the judge (for example, only a retainer relationship on a case-by-case basis), neither disclosure nor recusal is required. Opinions 06-22; 99-146 (Vol. XVIII).

         Here, the Committee holds that a judge’s personal accountant, employed on an ongoing basis, should be treated similarly to a lawyer who is “counsel.” Accordingly, when that accountant’s firm appears, either as a party, or as an expert witness, the judge should disclose the relationship and exercise recusal, subject to remittal. Opinions 06-22; 04-78; 91-56 (Vol. VII). In reaching this conclusion, the Committee distinguishes our prior decision in Opinion 06-28, in which we opined that a judge, with a minimal social relationship with and a remote financial connection to an accountant, could appoint that person as an expert witness, without the need to disclose or exercise recusal. Opinion 06-28.

         To the extent the inquirer also asks whether he/she should find another accountant, the Committee believes that it is appropriate to leave to the judge whether administrative or other difficulties require such a result.