Opinion 08-91

June 6, 2008

As amended November 7, 2008

Please Note: The two-year disqualification period in point (2) has been modified by Opinion 12-05. While disqualification is still required for the first year (and is still subject to remittal), only disclosure is required for the second year.

Digest:         (1) A recently elected full-time judge is not necessarily disqualified from presiding when the former chief court attorney, who left the court immediately prior to the date the judge assumed the bench, appears in the judge’s court. The judge may ask relevant questions to determine if the former chief court attorney’s current role representing clients in the judge’s court creates an appearance of impropriety, and must be guided by the Code of Professional Responsibility and any applicable case law and statutes. (2) For two years after the chief court attorney’s employment with the court has ended, a court attorney referee, who was subject to the former chief court attorney’s supervision, should disqualify him/herself when the former chief court attorney appears before him/her. Such disqualification is subject to remittal.

Rules:          CPLR §4301; 22 NYCRR 100.2(A); 100.2(B); 100.3(E); 100.6(A); 101.1; Opinion 08-12; 05-96; 04-121.

Opinion:

         A recently elected full-time judge asks if he/she may preside when the former chief court attorney or his/her associates appear before him/her as attorneys. The attorney left the chief court attorney position immediately prior to the date the judge assumed the bench.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). He/she shall not allow family, social, political, or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B[), and must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). In Opinion 04-121, the Committee advised that a judge is not necessarily disqualified when a former judge of the court appears before him/her as an attorney. “It is for each judge of the court to determine for his or herself whether the relationship with a former full-time judge or a part-time judge is of such a nature that an appearance of partiality might be created” (see id.). Here, the attorney appearing before the inquiring judge served not as a judge, but as the chief court attorney, and left the court before the judge assumed the bench. It is the Committee’s view, therefore, that the inquiring judge is not necessarily disqualified when the former chief court attorney appears before him/her. The judge must determine whether there is any other factor that warrants his/her disqualification.

         Where the former chief court attorney appears on cases that were pending in the court while he/she served in that capacity, “ . . . the judge may ask such questions as are relevant in each case to determine if there is a conflict between the attorney’s current role representing clients before the court and the attorney’s former role as court attorney for the same court. The answers to any such questions will serve to inform the parties of the extent of the attorney’s actual involvement in a particular case as a court attorney and will allow the judge to evaluate whether the attorney’s continued involvement would create an appearance of impropriety” (see Opinion 05-96). The judge in the present inquiry, therefore, may question the former chief court attorney when he/she appears to determine if his/her continued involvement in a particular case will create an appearance of impropriety. As the Code of Professional Responsibility and any applicable statutes or case law govern the propriety of an attorney’s appearance in such cases, the Committee declines to comment on any issues to be considered in that regard as they are beyond the Committee’s jurisdiction (see 22 NYCRR 101.1[There shall be an Advisory Committee on Judicial Ethics to issue advisory opinions to judges and justices of the Unified Court System concerning issues related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties.]).

         The judge also asks if it is appropriate for the former court attorney or his/her associates to appear before court attorney referees in the judge’s court. The judge advises that the chief court attorney was expected to review all files received by the court, to assign each file to a court attorney referee, to provide direction to the assigned court attorney referee as to how a case should proceed, and to review all substantive decisions.

         Court attorney referees are subject to the Rules Governing Judicial Conduct in the performance of their judicial functions (see 22 NYCRR 100.6[A]; Opinion 08-12), and therefore, also must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A court attorney referee cannot allow family, social, political or other relationships to influence his/her conduct or judgment (see 22 NYCRR 100.2[B[), and must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).

         In the Committee’s view, a court attorney referee’s impartiality might reasonably be questioned when his/her former supervisor appears before him/her and therefore, should disqualify him/herself from all proceedings in which the former supervisor appears for two years after the former supervisor’s employment with the court has ended (see 22 NYCRR 100.3[E]). If a court attorney referee discloses the basis for his/her disqualification, however, and the parties who have appeared and not defaulted and their lawyers, without the court attorney referee’s participation, all agree on the record that the court attorney referee should nevertheless preside, and the court attorney referee believes he/she will be impartial and is willing to participate, the court attorney referee may participate in the proceeding (see id.). Absent an agreement to remit the disqualification, the court attorney referee many not preside. Unlike a judge, however, a court attorney referee has no power to relieve him/herself from his/her duties (see CPLR §4301). A court attorney referee who is disqualified and cannot preside, therefore, must so advise the judge who appointed him/her so that the judge can relieve the court attorney of his/her responsibilities with respect to the case and assign another court attorney referee.

         As is the case with the judge, a court attorney referee, in order to decide whether the former chief-court attorney’s partners or associates may appear, also may question any of them when they appear on a case that was pending in the court when the chief court attorney was employed there, to determine both the extent of the former chief court attorney’s involvement in the case while he/she was employed by the court and the extent to which the former chief court attorney has discussed the case with his/her partner and/or associate appearing on the case since his/her employment by the court ended (see NYCRR 100.2[A]; Opinion 05-96). A court attorney referee also should refer to the Code of Professional Responsibility and any applicable statutes or case law to determine the propriety of a partner’s or associate’s appearance in such cases.