Opinion 10-99

January 14, 2011

Please Note: Opinion 22-183 states, “Opinions 19-104, 19-93, 18-42, 17-76, 15-08, 10-99, 10-56, and 08-171/08-174 are modified to reflect that, after the two-year period, whether to disclose is solely within the judge’s discretion.” Please refer to Opinion 22-183 for additional information. 

         This responds to your inquiry (10-99) asking when the attorney who represented your ex-spouse against you in a family court matter, or the attorney’s partners and associates who were not involved in your ex-spouse’s representation, may appear before you once the matter is concluded.

The First Two Years 

         If the attorney who represented your ex-spouse against you appears before you within two years after the matter was concluded, you are disqualified, subject to remittal (see Joint Opinion 08-171/08-174). After the two year period, if you can be fair and impartial, you must disclose the representation and, in the event of an objection to your continuing to preside, whether to exercise recusal is solely within your discretion (see id.).

         However, at any time after the matter has concluded, if your ex-spouse’s attorney’s partners and associates, who had no involvement in the representation appear, you may preside as long as you believe you can be fair and impartial and as long as you fully disclose that the firm represented your ex-spouse (see id.). If any party objects to your continued participation in the case, whether to exercise recusal is solely within your discretion (see id.).

After the Two-Year Mark 

         When the attorney who represented your ex-spouse against you appears in your court more than two years after the matter was concluded and you believe that you can be fair and impartial and are willing to preside, you must fully disclose that the attorney represented your ex-spouse (see id.). If a party objects to your continued participation in the case, whether to exercise recusal is solely within your discretion (see id.).

         The duration of your obligation to continue such disclosure more than two years after the matter was concluded depends upon such factors as (1) the nature of the instant proceeding; (2) the nature of the prior representation; (3) the frequency and duration of the representation; (4) the amount of work the attorney performed for your ex-spouse and the fee charged (if known); (5) whether the representation was routine or technical; and, (6) whether there are any special circumstances creating a likely appearance of impropriety (see Opinion 10-56, citing 88-120/ 88-125 [Vol. II]).

         When a partner or associate of the attorney who represented your ex-spouse and was not involved in that representation appears in your court more than two years after the matter was concluded, you may, but are not required to, disclose that the firm represented your ex-spouse against you, and whether to exercise recusal is solely within your discretion (see id.).

         I have enclosed Opinions 10-56 and Joint Opinion 08-171/08-174 for your convenience.