Opinion 10-87

June 10, 2010

Digest:         A full-time judge need not grant an attorney’s request for the judge’s recusal from all cases involving the attorney’s law firm based on the fact that, seven to ten years ago, the judge’s former law firm represented a party that sued the attorney’s law firm and the attorney’s spouse.

Rules:          22 NYCRR 100l.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(I); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 09-219; 93-73 (Vol. XI); 92-40 (Vol. IX); People v Moreno, 70 NY2d 403 (1987).

Opinion:

The inquiring full-time judge asks whether he/she must grant an attorney’s request that the judge recuse him/herself from all cases involving the attorney’s law firm. The judge advises that seven to ten years ago, his/her former law firm represented a plaintiff in an action against the attorney’s law firm and the attorney’s spouse.

According to the information the inquiring judge has provided, the attorney asserted on the record that the judge should disqualify him/herself because the judge “directly profited from [the] action against my law firm and my [spouse].” The attorney also asserted that his/her firm had “at least three other cases with [the judge], and [in] one of them [the judge has] demonstrated hostility towards me personally and towards the cases.” However, the judge states in the inquiry that he/she has “examined the record and considered my conscience” and concludes that he/she is not hostile to the firm, and can be fair and impartial in the matters currently before him/her.

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]), including under the circumstances specifically described in section 100.3(E)(1) of the Rules Governing Judicial Conduct (Rules) or pursuant to a Committee opinion (see e.g. Opinion 09-219 [judge should disqualify him/herself when the judge and the law firm appearing before the judge are adversaries in an unrelated case]; Opinion 93-73[Vol. XI] [judge has personal bias or prejudice against a lawyer or law office]).

Where neither a provision of the Rules nor a Committee opinion mandates disqualification, a trial judge is the sole arbiter of recusal. Therefore, the decision whether to exercise recusal is within the judge’s discretion once the judge searches his/her personal conscience (see People v Moreno, 70 NY2d 403 [1987]). Based on the facts presented, there is no allegation that the judge has any economic or other interest in any currently pending matters that involve the attorney or the attorney’s law firm (see 100.3[E][1][c]; 100.3[E][1][d][iii]). Nor is there any allegation that the judge has a personal bias or prejudice concerning any party to the matters currently before the judge (cf. 22 NYCRR 100.3[E][1][a][I]).

In the Committee’s view, the fact that seven to ten years ago the judge’s former law firm sued the law firm with which the attorney appearing before the judge is associated and the attorney’s spouse, in and of itself, does not create an appearance of impropriety (cf. Opinion 92-40 [Vol. IX] [a part-time judge who practices law need not exercise disqualification from a criminal proceeding where the defendant is represented by an attorney who is an adversary to the judge in an unrelated civil action in another court]). Therefore, the judge need not disqualify himself/herself, unless he/she cannot be fair and impartial or is personally biased against the attorney or law firm (see 22 NYCRR 100.3[E][1]; Opinions 09-219; 93-73 [Vol. XI]).