Opinion 09-43

June 3-4, 2009

Digest:         (1) A judge who, prior to assuming the bench, shared office space with an attorney who now serves as the judge’s confidential law clerk and an attorney who is the judge’s personal secretary’s child, must disqualify him/herself, subject to remittal, when the attorney who is the judge’s personal secretary’s child appears in the judge’s court. If the judge’s disqualification is remitted and the judge continues to preside, the judge must insulate his/her personal secretary from any matter involving the attorney who is the personal secretary’s child. (2) The judge should not appoint the attorney who is his/her personal secretary’s child to serve as assigned counsel or as a law guardian.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E); 101.1; Opinion 05-151; 05-49

Opinion:

         A newly elected family court judge asks about the propriety of an attorney appearing before him/her in light of the judge’s previous professional relationship with the attorney and the attorney’s relationship to the judge’s personal secretary.

         The judge advises that prior to assuming the bench, the judge, the attorney and the judge’s confidential law clerk in family court shared office space as private practitioners in a building the judge owned. The judge and the attorney shared the space for a period of two years. According to the judge, he/she was not affiliated in any type of business relationship or partnership with either the attorney or the judge’s current confidential law clerk, did not share office staff or clients, and that all three attorneys maintained completely separate law practices during the time they shared the office space. However, the judge indicates that the three attorneys had a common waiting area as well as common telephone and fax numbers, and used one answering machine to record client messages when they were out of the office. The judge further indicates that he/she and the other attorneys shared expenses, but never worked together on cases. The judge also indicated that he/she never covered court appearances for the attorney, but that the attorney did cover court appearances for the judge. The judge did not compensate the attorney for doing so. According to the judge, this occurred no more than five times.

         According to the judge, the attorney practices in the judge’s court, and recently was offered employment by a law firm that represents the local Department of Social Services. The attorney is the judge’s personal secretary’s child, but does not reside with his/her parent.

         The judge asks about the propriety of the attorney appearing before him/her when he/she employs the attorney’s parent as his/her personal secretary and the attorney appears on behalf of a law firm to represent the local Department of Social Services; whether it is appropriate for the attorney to appear on any other matters before the Court that do not conflict with his/her role as an attorney for the local Department of Social Services (i.e. as law guardian on a custody matter); and, whether he/she is permitted to assign the attorney to appear as a law guardian and/or assigned counsel.

         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]). Moreover, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). In addition, a judge must not lend the prestige of judicial office to advance the private interests of him/herself or others, and must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).

         In Opinion 05-151, the Committee advised that where the judge’s personal secretary is married to an attorney who practices in the judge’s court and the judge believes that he/she can be impartial, the judge should disclose the relationship between his/her secretary and the attorney when the attorney appears in the judge’s court, and offer to recuse. The Committee further advised that the judge’s recusal is subject to remittal. And, the Committee indicated that the judge should not assign the attorney to any law guardian or assigned counsel position (see id.). Similarly, in Opinion 05-49, the Committee concluded that a judge whose confidential secretary is in a personal relationship with an attorney may preside in the attorney’s or the firm’s cases only if, after disclosure, the parties and their attorneys consent, and the judge’s secretary is insulated from such matters.

         While the inquiring judge indicates that he/she is aware of Opinion 05-151, he/she believes that the parental relationship between his/her personal secretary and the secretary’s child is more remote than the spousal relationship in Opinion 05-151 and, therefore, warrants a different result.

         However, the Committee cannot resolve the present inquiry based only on the fact that the attorney appearing in the judge’s court is the judge’s personal secretary’s child. Rather, there are several relationships to consider: The judge’s past professional relationship with the attorney, the attorney’s past professional relationship with the judge’s confidential law clerk, and the attorney’s familial relationship with the judge’s personal secretary. Given these multiple, overlapping, relationships, and the fact that as an attorney representing the Department of Social Services, the judge’s personal secretary’s child will appear regularly in the judge’s court, it is the Committee’s view that the judge must disqualify him/herself in any case in which the attorney appears, whether on behalf of a private client or the Department of Social Services. If the judge discloses the basis for his/her disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record that the judge should nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may preside (see 22 NYCRR 100.3[E]). Absent an agreement to remit the disqualification, the judge must recuse him/herself from the proceeding. In addition, if the judge continues to preside, he/she must insulate his/her personal secretary from the case (see Opinion 05-151; 05-49).

         It also is the Committee’s view that the judge should refrain from assigning or appointing his/her personal secretary’s child to any fiduciary position, e.g. as assigned counsel or as a law guardian (see 22 NYCRR 100.2; 100.2[A]; 100.2[C]; see also 05-151).

         The Committee cannot address whether it is appropriate for the attorney to appear on any other matters before the Court that do not conflict with his/her role as an attorney for the local Department of Social Services, as the question does not concern judicial ethics (see 22 NYCRR 101.1).