Opinion 09-107

June 3-4, 2009

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51). Please see Opinion 15-51 for factors to consider in exercising this discretion.

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A part-time town justice must disqualify him/herself when the town supervisor’s sibling is the defendant in a small claims case. The judge’s disqualification is subject to remittal unless a party appears without a lawyer. (2) A part-time town justice must disqualify him/herself when a former client appears in the judge’s court fewer than two years after the representation ended. The judge’s disqualification is subject to remittal unless a party appears without a lawyer. Thereafter, the judge must disclose the former representation and disqualify him/herself upon request unless the judge concludes the request lacks merit after considering all relevant factors.

Rule:            22 NYCRR 100.2; 100.2(A); 100.2 (B); 100.3(E)(1); 100.3(F); Opinion 09-19

Opinion:

         A part-time town justice asks whether he/she may preside in a small claims case where the town supervisor’s sibling is the defendant. The inquiring judge indicates that the town supervisor was a member of the town board when the judge was appointed town judge and, as a member of the town board, participates in setting the judge’s salary.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and independence of the judiciary (see 100.2[A]). Therefore, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). And, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In the Committee’s view, the judge’s impartiality could reasonably be questioned should the judge preside in a small claims case where a sibling of the town supervisor, who sets the judge’s salary, is the defendant (see 22 NYCRR 100.3[E][1]). Therefore, the judge must disqualify him/herself (see id.). Remittal of disqualification would be available only in the relatively unlikely event that both parties in the case are represented by a lawyer (see 22 NYCRR 100.3[F]).

         The judge also asks whether he/she may preside in a case that the Town Code Enforcement Officer/Building Inspector filed in the Town Justice Court charging the defendant with violating both town and state zoning ordinances. The judge advises that he/she previously represented the Town Code Enforcement Officer in a private real estate matter and received a legal fee for doing so.

         When a former legal client appears in a judge’s court fewer than two years after the representation ended, the judge must disqualify him/herself, subject to remittal (see 22 NYCRR 100.3[E][1]; 100.3[F]). Thereafter, the judge must disclose the former representation and disqualify him/herself upon request unless the judge concludes the request lacks merit after considering all relevant factors (see Opinion 09-19). The judge need not disqualify him/herself if the Deputy Code Enforcement Officer appears in the judge’s court (see id.).