Opinion 11-127

October 27, 2011

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         Absent any other disqualifying factor and assuming the judge can be fair and impartial, a full-time judge who last engaged in the private practice of law more than four years ago need not disclose his/her prior association with a law firm now appearing in the judge’s court. The judge may, in his/her discretion, make such disclosure, even if a party is unrepresented, without incurring any obligation to disqualify him/herself.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3[E][1]; Opinions 10-203(B); 07-158; 05-152; 04-42; 99-72 (Vol. XVIII); Joint Opinion 07-114/07-120; People v. Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge who last engaged in the private practice of law more than four years ago asks about the ethical implications of disclosing his/her prior association with a law firm appearing in the judge’s court. The inquirer acknowledges that a judge must disqualify him/herself for a period of two years after the judge’s employment with a law firm ends when the law firm appears in the judge’s court. The judge also advises that parties appearing in the judge’s court are often unrepresented and that he/she is aware of the Committee’s prior opinions advising that a judge may not accept remittal of disqualification from an unrepresented party. Consequently, the judge asks whether he/she is prohibited from disclosing his/her prior association with a law firm appearing in the judge’s court when a party is unrepresented and, instead, must disqualify him/herself.

          A judge must avoid even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and independence (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]).

          The Committee has previously advised that a judge must disqualify him/herself, subject to remittal, for two years after the judge’s employment with his/her former law firm ends, including any existing financial relationship, when the judge’s former law firm appears in the judge’s court (see Opinions 10-203[B]; 04-42; 99-72 [Vol. XVIII]).¹ Thereafter, in the absence of any other disqualifying factor and assuming the judge can be fair and impartial, the Committee believes that a judge’s former employment relationship is ordinarily sufficiently remote so that neither disclosure nor disqualification is required. Nevertheless, where disqualification is not mandatory, it remains a “discretionary decision within the conscience of the court” (People v. Moreno, 70 NY2d 403, 405 [1987]). Similarly, the inquiring judge may, in his/her discretion, choose to disclose his/her prior association with a law firm appearing in the judge’s court more than two years after the association ended.

           The Committee also has previously advised that a judge who is required to make a disclosure in lieu of outright disqualification cannot do so, without recusing him/herself, when a party appears without representation. Instead, the judge must exercise recusal if a party is unrepresented (see Joint Opinion 07-114/07-120; Opinion 05-152; see also Opinion 07-158). However, in the Committee’s view, and in order to clarify and refine the judge’s ethical obligation relating to this issue, a judge who is not required to make a disclosure may nevertheless decide to do so voluntarily, even if a party is unrepresented. And, having done so, the judge may continue to preside whether or not any party objects or requests transfer to another judge solely on the basis of the information disclosed, absent any other disqualifying factor and assuming the judge believes that he/she can be fair and impartial.

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    ¹ The inquiring judge does not indicate whether he/she is receiving a pension from his/her former law firm (cf. Opinion 04-42 [judge who is receiving a pension from former law firm should disqualify him/herself, subject to remittal, in all cases in which law firm appears, for as long as judge is receiving pension]).