Opinion 12-111

June 14, 2012

Please Note: Opinion 13-132 has modified this opinion "to reflect that disqualification does not extend to attorneys in the law firm who are not involved in representing" the judge's first-degree relative. 

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:         (1) A judge, whose parent has retained a private law firm to represent him/her as an executor in an estate proceeding, is disqualified from all matters in which the law firm appears until the estate proceeding is fully concluded. The disqualification is subject to remittal as set forth herein. (2) For two years after the estate proceeding is fully concluded, if all parties who have appeared and not defaulted are represented by counsel, the judge may preside over matters in which the law firm appears after making full disclosure of the prior representation. If any party is appearing pro se, or if the judge does not wish to make disclosure, the judge may not preside. (3) After the two-year period, neither disclosure nor disqualification is required.

Rules:          Judiciary Law 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 12-110; 11-149; 11-127; 11-95; 11-72(A); 11-43; 11-26; 10-168; 09-55; 09-42; 08-165; 07-128; 02-56; 00-68 (Vol. XIX); 99-47 (Vol. XVII).

Opinion:

         The inquiring Surrogate’s Court judge states that his/her parent is the executor of an estate in an uncontested proceeding, and has retained a law firm to represent him/her in that capacity. The judge asks whether he/she may preside over other matters in which the law firm appears, in contested or uncontested proceedings.¹

          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]). Thus, a judge must disqualify him/herself from any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). In some circumstances, disqualification may be remitted (see 22 NYCRR 100.3[F]).

 While the Estate Proceeding is Ongoing

         The Committee has advised that a judge is disqualified, subject to remittal where permitted, when an attorney who presently represents the judge’s first-degree relative appears before the judge (see e.g. Opinions 09-55 [attorney who represents the judge’s parents’ closely held corporation]; 08-165 [public defender represents judge’s child in criminal matter]; 07-128 [attorney retained to prepare the judge’s adult child’s will]; 02-56 [judge’s child’s attorney is part-time prosecutor assigned to judge’s court]; cf. 11-95 [prosecuting attorney of judge’s child’s matter in criminal court]).

         In the present inquiry, the judge’s parent has retained a private law firm to represent him/her as the executor in an estate proceeding, and thus the judge is disqualified from all matters, contested or uncontested, in which the law firm appears, until the proceeding is fully concluded (see e.g. Opinion 11-43 [discussing disqualification issues in the context of Surrogate’s Court]).

         However, the judge’s disqualification is subject to remittal as long as all parties who have appeared and not defaulted are represented by counsel (see Opinion 11-149; 22 NYCRR 100.3[F]). As the Committee has previously advised, remittal is a three-step process. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must consider the judge’s disqualification. Third, the judge must independently conclude that he/she can be impartial and is willing to preside. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement to remittal into the record of the proceeding (see Opinion 11-149, relying on 22 NYCRR 100.3[F]).

 Two-Year Period After the Estate Proceeding is Concluded

         After the estate proceeding is concluded; the time to appeal has elapsed or any appeal taken is concluded; the law firm’s representation of the judge’s parent ends completely; and all fees are paid (see e.g. Opinions 12-110; 11-72[A]), the judge is no longer disqualified from hearing matters in which the law firm appears, as long as the judge can be fair and impartial (see e.g. Opinion 11-95; see also Opinions 10-168 [once attorney’s representation of judge’s spouse ends, disqualification not mandated provided “judge can be fair and impartial”]; 00-68 [Vol. XIX] [where attorney previously represented judge’s child or sibling, no obligation to recuse “provided that the judge is confident of his/her ability to be impartial”]; see also generally Opinion 11-26 [judge who cannot be impartial concerning a particular issue must disqualify him/herself, and remittal is not available]).

         However, the judge must fully disclose the prior representation for two years after the conclusion of the estate proceeding when the law firm that represented the judge’s parent appears before the judge (see Opinion 09-55; see also 99-47 [Vol. XVII] [two-year disclosure rule applies for law firm that previously represented judge’s spouse]).² If, following such disclosure, a party objects to the judge’s continued participation in the matter, the judge may nevertheless preside if the judge believes that he/she can be impartial (see Opinions 11-95; 10-168; 09-55; 08-165; 07-128).

         Because disclosure is mandatory during the two-year period following the resolution of the estate proceeding, the judge must disqualify him/herself if any party appears without representation (see Opinion 11-127) or if the judge does not wish to make full disclosure of the parent’s prior representation (see Opinion 11-95 n 2).

 After the Two-Year Period

         Once two years have elapsed since the conclusion of the estate proceeding, the judge may, but need not, disclose his/her parent’s prior representation when the attorneys who were involved in the matter appear before the judge, and disqualification is not required as long as the judge can be fair and impartial (see e.g. Opinions 11-127; 11-95; 09-42).

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         ¹ The Committee notes that the question regarding whether the Chief Clerk may, under SCPA 2609, process papers in uncontested proceedings from which the Surrogate is disqualified, appears to present primarily legal issues to which the Committee cannot respond (see Judiciary Law 212[2][l]).

         ² When a judge’s relative was previously represented or prosecuted by a public law firm, disclosure is required only for the attorneys who were personally involved in the matter (see Opinions 11-95 [prosecutor’s office]; 08-165 [public defender’s office]).