Joint Opinion 08-02/08-45

March 13, 2008

Digest:        Whether a judge may order the disqualification of a legislator/attorney and his/her law firm from appearing in the judge’s court, because of the longstanding issue regarding judicial salary adjustments pending before the New York State legislature, is a question of law which this Committee has no authority to address pursuant to Judiciary Law §212(2)(l).

Rules:          Judiciary Law §212[2][l]; 22 NYCRR 101; Joint Opinion 07-84/07-140; Opinions 07-190; 07-176; 07-25; 06-12; 91-118 (Vol. VIII).

Opinion:

         A judge asks whether he/she may disqualify a legislator/attorney and her/his firm from appearing in the judge’s court because of the longstanding issue regarding judicial salary adjustments pending before the New York State Legislature (08-02). In a supplemental letter, the same inquiring judge questions the propriety of “[t]he recent appointment by Assembly Speaker Silver and Senate Minority Leader Smith of Arthur Luxenberg, a founding member of the law firm in which Speaker Silver serves as counsel, to the judicial screening committee charged with recommending to the Governor candidates for appointment to [various state judicial positions]” (08-45).

         A judge’s authority to disqualify an attorney or the attorney’s law firm from appearing in the judge’s court is a question of law, not judicial ethics. Moreover, disqualification of an attorney may implicate the attorney-client relationship and the right to counsel, matters clearly beyond this Committee’s mandate (see 22 NYCRR part 101; cf. Opinions 06-12; 91-118 [Vol. VIII]). The Committee, therefore, declines to answer the inquirer’s question (08-02) because it lacks the statutory authority to do so (see Judiciary Law §212[2][l]).

         However, if the inquiring judge is concerned about whether he/she may continue to preside when a legislator/attorney appears before him/her, we invite the judge to review and consider this Committee’s opinions on the subject (see e.g. Joint Opinion 07-84/07-140; Opinions 07-190; 07-176; 07-25).

         The judge also suggests that the type of appointment power described in his supplemental inquiry (08-45) is a further reason, in the inquirer’s opinion, why a legislator/attorney should be disqualified from appearing in court. This suggestion or observation does not pose a specific question involving the inquirer’s own judicial conduct. Rather, the suggestion states a factor which the inquirer believes should be considered in the legal determination whether to disqualify the legislator/attorney from appearing before the judge. Once again, we have no statutory authority to address this matter (see Judiciary Law §212[2][l]).