Opinion 08-98

June 6, 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 judge is not necessarily disqualified from presiding when an attorney who appears before him/her was formerly a judge in the same court, but must determine whether his/her relationship with the former judge would create an appearance of impropriety. (2) A court attorney referee is disqualified, subject to remittal, when a former judge who presided during the court attorney referee’s employment appears before him/her.

Rules:          CPLR 4301; 22 NYCRR 16.1; 101.1; 100.2; 100.2(A); 100.2(B); 100.3 (E)(1); 100.3(F)100.6(A); Opinions 08-91; 04-121; 94-14 (Vol. XII); 90-136 (Vol. VI).

Opinion:

         A trial court judge asks whether he/she is disqualified from presiding when an attorney who appears before him/her was formerly a judge in the same court. The attorney resigned from his/her judicial office before the inquiring judge assumed the bench. The judge also asks whether court attorney referees are disqualified when the former judge appears before them.

         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]). A judge must avoid impropriety and even the appearance of impropriety (see 22 NYCRR 100.2) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         When a former judge of a nisi prius court appears before a current judge of the same court, the latter is not automatically disqualified from presiding (see Opinion 94-14 [Vol. XII]). Rather, the current judge must determine whether his/her relationship with the former judge creates an appearance of impropriety (see Opinion 04-121). ¹

          The judge also asks whether court attorney referees are disqualified when the former judge appears before them. 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 08-91) 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]). In addition, a court attorney referee shall not 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, subject to remittal, in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1], [F]).

         In the Committee’s view, a court attorney referee’s impartiality might reasonably be questioned when a former judge who presided during the court attorney referee’s employment appears before him/her. Therefore, the court attorney referee should disqualify him/herself from all proceedings in which the former judge appears for two years after the end of the former judge’s term of office (see 22 NYCRR 100.3[E]; Opinion 08-91). If the court attorney referee discloses the basis for his/her disqualification, 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, he/she may participate in the proceeding (see 22 NYCRR 100.3[F]). Absent an agreement to remit the disqualification, the court attorney referee may not preside. Unlike a judge, however, court attorney referees have no power to relieve themselves from their 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.

         The Committee does not address any professional ethics issues concerning the former judge appearing as an attorney, as such issues are beyond the scope of the Committee’s jurisdiction (see 22 NYCRR 101.1; Opinion 94-14 [Vol. XII]; cf. 90-136 [Vol. VI]).

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         ¹ The Committee recognizes that a different rule applies to appellate court judges (see 22 NYCRR 16.1 [former judge of the New York State Court of Appeals or former justice of the Appellate Divisions or Appellate Terms of the Supreme Court of the State of New York is prohibited from appearing in person in the Appellate Court on which he or she served within two years after having left such court]).