Opinion 12-147

September 13, 2012

Digest:         Where the New York State Attorney General is the attorney of record in a case involving a state agency, a judge who has both an ongoing social relationship and a prior professional relationship with the state agency’s general counsel is not required to disqualify him/herself, provided that the judge believes he/she can be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); Opinions 12-13; 11-127; 11-125; 10-203(B); 08-166; 07-14; 03-13.

Opinion:

         The inquiring judge states that the New York State Attorney General is the attorney of record for a particular New York State agency (state agency) in certain matters currently pending before the judge. The judge knows the state agency’s general counsel personally because, more than a decade ago, they were both employed in the same government law office for almost two years. For a short period, the inquiring judge supervised the attorney. The judge states that, over the years, the judge and the attorney have socialized together on a few occasions with their families; exchanged personal e-mails occasionally; and have met at social events associated with their former employer, such as staff reunions or farewell parties. The judge asks whether he/she must disclose his/her relationship with the state agency’s general counsel or disqualify him/herself from cases involving the state agency, when (as here) the state agency appears through the Attorney General.

         A judge must avoid even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), shall not allow others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge may be required to disclose or disqualify him/herself where the judge has or has had a professional, and/or social relationship with an attorney appearing in the judge’s court (see Opinions 11-125 [whether a judge’s friendship with an attorney requires disqualification depends on the facts of each case]; 10-203[B] [judge must disqualify him/herself subject to remittal when attorney from judge’s former law firm appears in the judge’s court for two years after the judge’s employment with the law firm ends]; 08-166 [when attorney with whom judge had a business/professional relationship and currently has a social relationship appears, judge should disclose and provide opportunity to request recusal; but see also 11-125 (recusal then becomes discretionary)]; 07-14 [judge who served as assistant district attorney may preside when district attorney’s office appears if judge had no involvement in case and can be fair and impartial]).

         However, where the professional relationship with an attorney is remote, a judge is not required to disqualify him/herself (see, Opinions 12-13 [neither disqualification nor disclosure required where significantly more than two years have passed since professional relationship with attorney ended]; 11-127 [judge need not disclose prior association with a law firm where judge last engaged in the private practice of law more than four years ago]; 03-13 [neither disqualification nor disclosure required where judge served as campaign manager for district attorney more than ten years ago]. As the judge and the state agency counsel were associated professionally more than ten years ago, that early relationship is too remote to require the judge to either disclose it or to disqualify him/herself in the cases now pending in the judge’s court.

         In addition to the prior professional relationship, the judge states that he/she has an ongoing social relationship with the attorney. In Opinion 11-125, the Committee provided general guidelines to help judges analyze the nature of their own specific relationships with particular attorneys and assess the ethical obligations, if any, resulting from those relationships.

         Under the circumstances presented, however, the Committee believes that detailed analysis of the judge’s social relationship with the state agency’s general counsel is not necessary, because the general counsel is not appearing before the judge – either as the party in interest, or the counsel of record, or as a witness. Therefore, the relationship between the state agency’s general counsel and the litigation is sufficiently remote, so that the judge’s impartiality cannot reasonably be questioned based on his/her social relationship with the general counsel (see 22 NYCRR 100.3[E][1]). Thus, as long as the judge believes he/she can be fair and impartial, the judge is neither required to disqualify him/herself nor to disclose the relationship.