Opinion 11-45

April 28, 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:         A judge must disqualify him/herself when his/her former law partner appears in the judge’s court where the judge and his/her former law partner terminated their prior professional relationship within the past three years and their families maintain a close ongoing social relationship. The judge’s disqualification is subject to remittal, unless a party is self-represented.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 08-166; 07-26; 06-149; 06-44; Joint Opinion 05-90/05-89; Opinions 01-07 (Vol. XIX); 00-67 (Vol. XIX); 89-31 (Vol. III); Matter of Robert, 89 NY2d 745 (1997); Matter of Huttner, 2006 Ann. Rep. of NY Commn. on Jud. Conduct, at 193.

Opinion:

         A full-time judge asks whether the judge’s former law partner may appear in the judge’s court. The judge and his/her former law partner have known each other since childhood. They practiced law together for almost a decade in their hometown, and their partnership ended within the past three years. Although the attorney and judge have not socialized individually since the judge took the bench, they have many mutual friends. They and their spouses continue to see each other “at social events and sometimes family outings.” Their children are close friends who often visit each other’s homes. The attorney is the godparent of the judge’s child, and the attorney’s spouse typically purchases a small birthday and holiday gift for the judge’s child each year.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). 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 proceedings in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         A judge is ordinarily in the best position to assess whether in a particular proceeding the judge's impartiality might reasonably be questioned due to the involvement of an attorney whom the judge knows socially (see Opinion 07-26; 22 NYCRR 100.3[E][1]). The judge should take into account factors such as the nature of the relationship between the judge and the attorney, the relationships among their respective family members, the frequency and the context of their contacts and whether they share confidences (see, e.g., Opinions 08-166; 07-26; 06-149; 06-44).

          The Committee has previously advised that where a judge has a close social relationship with an attorney, the judge should, at the very minimum, disclose the nature and extent of that relationship “so that a determination can be made, whether under such circumstances[,] there is to be an informed consent to the judge’s presiding, or whether recusal” is required (Joint Opinion 05-90/05-89; see also 22 NYCRR 100.3[F]; Matter of Robert, 89 NY2d 745 [1997]; Matter of Huttner, 2002 Ann. Rep. of NY Commn. on Jud. Conduct, at 113]). If the relationship between the attorney and the judge is ongoing and ‘ “appears to be sufficiently close as to give rise to a perception’ that the judge’s impartiality might reasonably be questioned” (Opinion 07-26, quoting Opinion 06-149) or is such that a reasonable person could reasonably conclude that the relationship might influence the judge – and thus call into question the judge’s impartiality – then in the Committee’s view, disqualification is required (see Opinion 06-149; 22 NYCRR 100.2[B]; 100.3[E][1]; 100.3[F]). Such disqualification is subject to remittal as long as all parties are represented by counsel (see Opinion 01-07 [XIX]). Remittal is unavailable if any party is self-represented.

         The Committee has further advised that a judge who will be receiving compensation in concluding a business relationship with the judge’s former partner must disqualify him/herself from matters in which the former partner appears, for a period of two years from the final payment to the judge (see Opinion 00-67 [Vol. XIX]). Moreover, the Committee also has recognized that a close professional relationship between law partners, especially in a small firm, frequently results in a social relationship that survives the professional one, so that “it is difficult ... to establish a precise time frame for the judge to continue recusal... .” (Opinion 89-31 [Vol. III]).

         Under the circumstances presented, the Committee concludes that the prior business relationship, coupled with the ongoing personal relationship between the judge’s and attorney’s families, is “sufficiently close so as to give rise to a perception that the judge’s judicial conduct or judgment may be influenced by their social relationship and thus may call into question the judge’s impartiality” (Opinion 06-149).

         Thus, disqualification is required when the judge’s former law partner appears in the judge’s court, subject to remittal, unless one of the parties is self-represented, in which case remittal is not permitted (see 22 NYCRR 100.3[F]; Opinions 06-149; 01-07 [Vol. XIX]).