Opinion 10-155

October 28, 2010

Digest:         A judge must determine whether his/her relationship with a former colleague of the same court who appears as a private practitioner in the judge’s court requires his/her disqualification.

Rules:          22 NYCRR 100.2; 100.2(A),(B); 100.3(E)(1); 101.1; Opinions 10-135; 08-198; 08-98; 04-121; 94-14 (Vol. XII); Judiciary Law 212(2)(l).

Opinion:

         The supervising judge (Judge) of a specialized trial court part (Part) advises that a judge who recently retired from the Part joined a private law firm. This retired judge is now engaged in the private practice of law and appearing in the Part. The Judge asks whether the retired judge may appear before his/her former colleagues in the Part if they believe they can be fair and impartial. The Judge also asks whether the retired judge may represent clients in matters that were pending in the Part before the judge retired and in which he/she had some limited involvement before the case was referred to another judge (e.g., signing an order to show cause or conferencing the matter). Finally, the Judge asks whether the parties and attorneys may waive any conflicts which may exist in any of these circumstances.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must avoid even the appearance of impropriety (see 22 NYCRR 100.2). In particular, 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]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). As the Committee has previously said, a judge is not necessarily disqualified from presiding when an attorney who appears before him/her was formerly a judicial colleague at the trial court level. Rather, the Judge must determine whether his/her former relationship with the attorney would create an appearance of impropriety or might influence his/her conduct or judgment (see Opinions 10-135; 08-98; 04-121; 94-14 [Vol. XII]).

         With respect to the balance of the inquiry, the Committee is only authorized to issue advisory opinions concerning issues of ethical conduct or proper execution of judicial duties (see Judiciary Law 212[2][l]; 22 NYCRR 101.1) and, therefore, cannot answer the remaining questions which involve interpretation of the applicable Rules of Professional Conduct (see Opinions 08-198; 08-98).