Opinion 11-72(A)

                                                 September 13, 2011

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

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).

Dear Judge:

          This responds to your inquiry (11-72) asking whether you may preside over matters when the law firm, with whom you previously shared office space, and which also currently provides personal legal services to your law clerk, appears before the court.¹

         Based on the Committee’s prior opinions, you indicate that you will exercise recusal for a period of two years from the date your relationship with the law firm ended. While disqualification for this reason is generally subject to remittal after full disclosure on the record (see 22 NYCRR 100.3[F]), it is not available if any party appears pro se.

         If the parties remit your disqualification , you must insulate your law clerk from such cases until your law clerk’s case is concluded, all fees are paid, and the time to appeal has elapsed or any appeal taken is concluded. Moreover, when the attorney or the attorney’s firm appears in your court, you should also disclose that the attorney represents your law clerk in a pending personal matter, the nature of the matter, and that the law clerk is being insulated from the attorney’s and the attorney’s firm’s cases.

         Once the law clerk’s case is over, the fees are paid, and the appeal process is completed, you are no longer required to insulate the law clerk from his/her attorneys’ cases nor to disclose that the firm represented him/her.         

         Enclosed, for your convenience, are Opinions 10-72; 09-27; 08-165 and 95-96 which address this issue.

Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.

_______________________

     ¹ The fact that your law clerk was also previously employed by this firm does not warrant recusal, insulation or disclosure as his/her employment with the firm ended more than two years ago (see Opinion 09-27).