Opinion 09-193

October 22, 2009

Digest:         A judge who presides in a specialized part of the Supreme Court and receives assistance from an attorney who volunteers as a Special Master must disclose the relationship when other attorneys from that attorney's law firm appear in the judge's court. If a party objects to the judge continuing to preside, the judge has the discretion to recuse or, assuming he/she can be impartial, to continue to preside, depending on the circumstances in each case.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); Joint Opinion 07-105/07-119; Opinion 07-173; 07-04; 99-106 (Vol. XVIII); Opinion 95-58 [Vol. XIII]; Opinion 88-157 (Vol. III)

Opinion:

         A Justice who presides in a specialized part of the Supreme Court receives assistance with his/her caseload from a team of practicing attorneys who volunteer to serve as Special Masters. A Special Master conferences cases and resolves discovery disputes. One of the attorneys who regularly volunteers for the inquiring judge has accepted a position with a new law firm that appears in the same specialized part of the Supreme Court where the Justice presides. The attorney will not handle any cases for his/her law firm that will be heard in the Justice's court and, therefore, will not appear before the Justice. And, in his/her volunteer position, the attorney will be insulated from any cases involving his/her law firm. The Justice asks whether he/she may continue to preside in cases where the volunteer attorney's law firm appears.

         A judge must always avoid impropriety and its appearance in all activities (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any case where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). In addition, a judge must not allow his/her professional relationships to influence the judge's judicial conduct or judgment (see 22 NYCRR 100.2[B]), and shall not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).

         The Committee previously has advised that a Judge who believes he/she can be impartial need not disclose the relationship or disqualify him/herself when an attorney, who periodically serves as a volunteer Special Master in the Judge's part, represents a client before the Judge (see Opinion 99-106 [Vol. XVIII]). However, in the present inquiry, it is not the Special Master who will appear in the Justice's court, but, rather, other attorneys from the law firm that employs the Special Master.

         Where a judge's law clerk leaves the judge's employ to engage in the private practice of law, the Committee advised that for a period of one year thereafter, the judge should disclose that an attorney appearing before him/her is the former law clerk's business associate and should exercise recusal upon a party's request (see Opinion 07-173).

         The relationship between a judge and his/her law clerk is one of particular trust and confidence (see Opinion 07-04). "Although a judge and his/her law clerk are of course not ‘partners,' the two engage in the kind of professional interchange that might be found between long-time colleagues in a law firm" (id.). Therefore, the Committee has advised that a judge should disclose the former relationship and exercise recusal upon a party's request when a former law clerk appears in the judge's court (see id.). In contrast, a judge need not disqualify him/herself or disclose that an attorney appearing in his/her court previously served as the judge's law student research clerk (see Opinion 88-157 [Vol. III]), or when the judge's former law student intern works for a law firm that is appearing in the judge's court (see Opinion 95-58 [Vol. XIII]).

         In the Committee's view, the relationship between a judge and an attorney who volunteers as a Special Master in the judge's court, even if he/she regularly works for a particular judge, does not rise to the same level of trust and confidence as exists between a judge and his/her law clerk. The judge does not employ a Special Master. Rather, the latter is a volunteer who works in the court once monthly for the sole purpose of conferencing cases and resolving discovery disputes. Nevertheless, a Special Master's role clearly is more responsible than that of a law student research clerk or intern. Consequently, when the law firm that employs a Special Master who regularly works for a judge appears before the judge, the judge should disclose to the parties that the attorney's associate assists the judge as a Special Master. If a party objects to the judge continuing to preside, the judge has the discretion to recuse or, assuming he/she can be impartial, to continue to preside, depending on the particular circumstances in the case (see Joint Opinion 07-105/07-119).

         In light of this conclusion, the Committee overrules its earlier Opinion 99-106 (Vol. XVIII) and now advises that a judge also must disclose that an attorney who appears before him/her serves as a Special Master in the judge's court. Thereafter, if a party objects to the judge continuing to preside, the judge has the discretion to exercise recusal or continue preside, depending on the circumstances in the particular case (see Joint Opinion 07-105/07-119).