Opinion 12-17

January 26, 2012

Digest:         A full-time judge, who presides in a court devoted to cases involving a particular municipality and who previously was a member of a law firm that litigated cases in the same court against the same municipality, is not required to disclose his/her prior association with the law firm or to disqualify him/herself from cases against the municipality where the judge’s prior law firm is not involved.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(4); 100.3(E)(1); 100.3(E)(1)(b)(i)-(ii); Opinions 11-127; 11-64; 11-21; 10-203(B); 04-42.

Opinion:

         A full-time judge who recently took office states that he/she was previously a member of a law firm. The judge’s relationship with the firm is completely terminated, and the judge has no further economic interest in the firm.¹ The judge has now been asked to sit in a court devoted to cases filed against one municipality. According to the judge, his/her prior law firm represented individuals against the same municipality in litigated matters. The judge states that he/she had “little to no involvement with those matters.” The inquiring judge indicates that he/she will disqualify him/herself from all matters in which his/her former firm appears, but asks whether he/she must disclose in all other matters that his/her former firm represented parties against the municipality during the judge’s tenure with the firm.

         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]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). For example, a judge is disqualified from presiding over a matter where the judge knows that (i) the judge served as a lawyer in the matter in controversy or (ii) a lawyer with whom the judge previously practiced law served, during such association, as a lawyer concerning the matter (see 22 NYCRR 100.3[E][1][b][i]-[ii]).

         Here, the judge states that he/she will not preside over matters where a lawyer from the judge’s prior law firm was or is involved in the case (see 22 NYCRR 100.3[E][1][b][ii]; see also Opinions 11-127; 10-203[B]). Absent any other basis for disqualification, the Committee sees no ethical impediment to the judge presiding in other cases against the municipality, in which the judge’s prior law firm has had no involvement. This is particularly so when, as here, the judge had “little to no involvement with” the firm’s litigations against the municipality while he/she was in private practice. Even if the judge’s former law firm regularly litigated against the municipality, the judge need not disclose that fact in other matters against the municipality, provided the judge believes he/she can preside without bias or prejudice against or in favor of any person or party (see 22 NYCRR 100.3[B][4]). Of course, if the judge doubts his/her ability to be impartial in a particular matter, then he/she of course must not preside (see Opinion 11-64).

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         ¹The judge anticipates receipt of a single profit-sharing payment which the judge fully earned during his/her prior employment, before he/she became a judge (compare Opinion 04-42 [judge who is receiving 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] with Opinion 11-21 [recently-elected judge may accept discretionary bonus paid by former law firm based on work actually performed by judge before assuming judicial office]).