Opinion 09-219

December 3, 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 who has been subpoenaed for deposition as a non-party witness by the defendant law firm in a legal malpractice action must disqualify him/herself in unrelated cases pending in his/her court where the defendant law firm appears while a motion to quash the subpoena is pending or until the judge’s deposition is completed, but only if the judge must take some judicial action in a case involving the law firm.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.(F); Opinion 08-142; 08-10; 98-27 (Vol. XVI); 91-51 (Vol. VII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge has been subpoenaed for deposition as a non-party witness by a defendant law firm in a legal malpractice action now pending in the Supreme Court. The judge advises that the allegations in the malpractice action stem from a personal injury action over which the judge presided several years ago. The judge further advises that the Office of Court Administration has submitted a motion to quash the subpoena. The judge asks whether he/she is disqualified in unrelated cases currently pending before him/her in which the law firm, that is the defendant in the malpractice action, appears.

         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 in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In the Committee’s view, where a presiding judge has an adversarial relationship with a law firm in an unrelated case, the judge’s impartiality might reasonably be questioned should he/she preside in cases where that law firm appears (see id.). Therefore, the judge in the present inquiry must disqualify him/herself in any case where the law firm that is the defendant in the legal malpractice action appears while the motion to quash the subpoena is pending or, if the motion to quash is not granted, until the judge’s deposition is completed, but only if the judge must take some judicial action in the unrelated case involving the defendant law firm. Once the motion to quash is granted or, if the motion to quash is not granted and the judge must be deposed, once the judge’s deposition is completed, the judge need not disclose that he/she was deposed nor disqualify him/herself unless he/she has a personal prejudice or bias against the law firm (see id.).

         While the judge’s disqualification in these circumstances is subject to remittal (see 22 NYCRR 100.3[F]) unless a party is unrepresented (see Opinion 98-27 [Vol. XVI]), it is the Committee’s view that the judge should seriously consider whether accepting remittal when he/she is engaged in an adversarial proceeding with the law firm is the best course to take. Whether to preside in a particular case “. . . is a matter confined to the conscience of the particular judge” (Opinion 91-51 [Vol. VII]; see also Opinion 08-10 and People v Moreno, 70 NY2d 403 [1987]). Therefore, the inquiring judge must ultimately determine whether accepting remittal under the circumstances described is the best and most prudent course to follow. That said, the Committee nonetheless strongly believes that where a judge has made full disclosure, the parties and attorneys have consented following the procedure required by 22 NYCRR 100.3 (F), the judge believes that he/she can be impartial, and the judge is willing to preside, the judge may accept a remittal and preside (see Opinion 08-142).