Opinion 09-42

March 12, 2009

Digest:         A judge need not disclose the relationship nor disqualify him/herself when an attorney, who merely drafted trust instruments on behalf of the judge's parents that name the judge as a co-trustee, more than four years earlier, appears before the judge.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); 100.3(E)(1)(e); Opinions 07-128; 96-50 (Vol. XIV).

Opinion:

         In 2005, the inquiring judge's parents retained an attorney who specializes in trusts and estates to draft their trust documents. The judge advises that the attorney practices law with the judge’s first cousin, and that his/her parents named the judge and the judge’s first cousin to serve as co-trustees. The judge further advises that neither the judge nor his/her first cousin has participated in the administration of the trusts as they are self-executing. The judge asks whether he/she may preside when his/her first cousin’s partners and/or associates appear in his/her court.

         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 (see 22 NYCRR 100.3[E][1]).

         In Opinion 07-128, the Committee advised that a judge is disqualified, subject to remittal, when an attorney who represents the judge’s adult child appears in the judge’s court. In addition, for a period of two years after the representation ends, the judge must disclose that the attorney represented his/her adult child, and, if a party asks the judge to recuse, the judge has the discretion to determine whether recusal is warranted (see id.). As the legal services provided to the inquiring judge’s parents were concluded, he/she must disclose the representation if the attorney who performed the legal services appears in the judge’s court within two years thereafter and may determine if recusal is warranted should any party object to the judge’s continued participation in the case.

         Although the Committee advised in Opinion 96-50 (Vol. XIV) that a judge must disqualify him/herself, subject to remittal, even when other attorneys from the same firm as an attorney who performed legal services for the judge’s spouse appear, that is not necessary in the present inquiry. In Opinion 96-50 (Vol. XIV), the attorney had represented the judge’s spouse and the judge’s spouse’s family in two separate actions involving the spouse’s parents’ deaths and also had previously advised the judge on two separate occasions, once four years earlier and once six years earlier. In the present inquiry, the attorney prepared the judge’s parents’ trust documents, which is not likely to have involved other members of the firm. Therefore, the inquiring judge need not disqualify him/herself when other partners or associates of his/her first cousin’s law firm who were not involved in preparing the trust documents appear (see id.).

         Nor does the fact that the inquiring judge’s first cousin serves as the judge’s co-trustee for the judge’s parents’ trusts require disqualification when other attorney’s from the first cousin’s law firm appear. The judge advises that, since the trusts were created, neither the judge nor his/her first cousin has sought or received legal advice from the lawyer who drafted the trust documents or any other member of the law firm. Further, according to the judge, his/her personal accountant has prepared and filed the annual tax returns for the trusts, and he/she has only performed the ministerial tasks necessary to insure that the income from both trusts is deposited directly into his/her surviving parent’s account.