Opinion 09-138

June 3-4, 2009

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:         A judge must disqualify him/herself when an attorney from the law firm that represents the judge in private business matters appears in the judge’s court. The judge’s disqualification is subject to remittal unless a party is unrepresented.

Rules:         22 NYCRR 100.2(A); 100.3(E)(1); 100.3(F); Joint Opinions 08-171/08-174 and 07-114/07-120; Opinions 00-89 (Vol. XIX); 99-67 (Vol. XVIII); 93-61 (Vol. XI).

Opinion:

         A part-time judge who owns and operates a business located in the town adjacent to the town where he/she presides asks whether he/she can preside in cases where the law firm that represents him/her in private business matters appears in his/her court. The judge advises that the law firm drafted and maintains the judge’s will and estate plan and that the law firm represents the judge’s business in collection proceedings.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and 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]). Therefore a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge must disqualify him/herself in any matter where his/her personal attorney appears, both during the representation and for two years after the representation ends (see Joint Opinion 08-171/08-174; Opinions 00-89 [Vol. XIX]; 99-67 [Vol. XVIII]; 93-61 [Vol. XI]). However, this disqualification is subject to remittal (see 22 NYCRR 100.3[F]; Opinion 93-61 [Vol. XI]) unless a party to the proceeding is unrepresented (see Joint Opinion 07-114/07-120).

         A judge who must disqualify him/herself, but believes he/she can be impartial may accept remittal of disqualification (see 22 NYCRR 100.3[F]). Remittal involves three-steps. First, the judge must fully disclose the basis for disqualification on the record. For the judge in the present inquiry, full disclosure means advising the parties that the representation is on-going and/or that it occurred within the last two years, and of the nature of the representation. Second, following such disclosure, and without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see id.). The judge then may continue to preside.