Opinion 09-19

January 29, 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.

Digest:         A part-time lawyer judge who is a practicing attorney must disqualify him/herself in cases when a police sergeant currently represented by the judge’s law firm is called to testify before the judge. For two years after the representation is concluded, the disqualification is subject to remittal. Thereafter, the judge should disclose the former representation and disqualify him/herself upon request unless the judge concludes the objection lacks merit after considering all relevant factors. The judge need not disqualify him/herself when another officer appears who might be subject to the sergeant’s supervision. If the judge does learns the sergeant is involved in a case, the judge should disqualify him/herself, subject to remittal.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 07-55; 01-71(Vol. XX); 97-85 (Vol. XVI); 94-71 (Vol. XII); 92-01 (Vol. IX) 

Opinion: 

         A part-time lawyer judge who is employed by his/her spouse’s law firm states that his/her spouse represents a police officer in a civil matter. The officer recently was promoted to the rank of sergeant and now supervises other police officers who may appear in the judge’s court. The judge asks about his/her ethical obligations when police officers who are subject to the sergeant’s supervision appear as witnesses in his/her court. According to the judge, when an arresting officer is called to testify, the judge does not normally know the identity of the sergeant who was on duty at the time of the arrest.

         A judge must avoid impropriety and the appearance of impropriety in all of 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 in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 94-71 (Vol. XII), the Committee advised that a judge should disqualify himself/herself when a current client of the judge appears in his/her court. And, where a former client appears in the judge’s court, the Committee has advised as follows (Opinion 92-01 [Vol. IX]):

If the last representation of the client by the attorney-judge occurred within the past two years, the judge should disqualify himself or herself [citation omitted], subject to remittal of disqualification if all parties affirmatively consent to the judge’s presiding [citation omitted].

If two years have elapsed since the last representation, the judge need not recuse himself or herself provided that the judge believes that he or she can be impartial. Neverthe- less, the judge should disclose the relationship on the record, and should recuse himself or herself if any party objects to the judge’s continuing to preside, unless the judge believes, under all circumstances, that the objection is frivolous, in bad faith or wholly without merit. Circum- stances to be considered in making that determination include, but are not limited to, the amount of time that has elapsed since the last representation, and the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circum- stances creating a likely appearance of impropriety.

This is also the case when the party appearing in the judge’s court is a past client of the judge’s law firm (see Opinions 01-71[Vol. XX]; 97-85 [Vol. XVI]). Therefore, the judge in the present inquiry also must follow the same procedures when the police officer who is the judge’s law firm’s client appears in the judge’s court.

         When another town police officer appears in the judge’s court as an arresting officer or witness, it is the Committee’s view that an appearance of impropriety could result if the judge presides in the case knowing that the sergeant who is the judge’s law firm’s client is involved in a supervisory capacity (22 NYCRR 100.3[E][1]). However, in this regard, the judge advises that “there is no mechanism in place to identify to the judges the particular Sergeant who was on-duty when a police officer made an arrest, and it is not a fact generally revealed at trial.” Nor does the Committee believe that the judge has a duty to inquire about this information in every criminal matter (see Opinion 07-55 [judge may ask litigants to disclose whether they are a current or former client of judge’s law firm, but is not required to do so.]; 94-71 [Vol. XII] [judge is not required to separately scrutinize all pleadings when defendant pleads by mail to determine whether arresting officer is a client]). Accordingly, unless the judge learns that the sergeant who is the judge’s law firm’s client is involved in the matter, the judge need not disqualify him/herself when other town police officers are involved.

         If the judge learns that the sergeant, although not appearing, is involved in a matter, the judge should disqualify him/herself (see 22 NYCRR 100.3[E][1]; Opinion 94-71 [Vol. XII]). However, if the judge believes that he/she can be impartial and is willing to preside, he/she may disclose that his/her law firm represents the supervising sergeant involved in the case. Thereafter, if the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree that the judge should not be disqualified, and that agreement is incorporated into the record, the judge may continue to preside (see 22 NYCRR 100.3[F]).