Opinion 12-179

December 13, 2012

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, who has waived or renounced his/her interest in any and all fees that may be earned from cases that, more than ten years ago, the judge’s former law firm referred to a law firm that will appear in the judge’s court and that remain on a “deferred” calendar, need not disqualify him/herself when the law firm appears on other, unrelated cases.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i), (ii); 100.3(F); Opinions 12-08; 11-52; 06-63; 99-91 (Vol. XVIII).

Opinion:

         The inquiring full-time judge states that he/she has recently been assigned to preside in a specialized civil part that handles a particular type of case. The judge states that when he/she was engaged in private practice, the judge’s firm had referred cases of this type to another law firm that handles such cases and accepted referral fees on such matters where appropriate. The judge states that he/she last received such referral fees more than ten years ago but has recently learned that some of the previously referred cases remain open, although currently inactive, on the court’s “deferred” calendar. The judge states that he/she is willing to waive any fees with respect to these cases. Based on these facts, the judge asks whether he/she may preside when the law firm to which he/she formerly referred cases appears in the judge’s court and, if so, whether he/she must disclose the former referral relationship.

         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 from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that when a judge who is a practicing attorney refers a case to another attorney and shares the fee the other attorney earns from that case, the judge must disqualify him/herself during the representation and for two years after the representation ends when the other attorney appears in the judge’s court (see Opinions 12-08; 06-63; 99-91 [Vol. XVIII], overruled in part on other grounds Opinion 09-27). However, the judge’s disqualification is subject to remittal (see 22 NYCRR 100.3[F]), unless a party is self-represented or the matter is before the court ex parte (see Opinion 11-52).

         In the present inquiry, although more than ten years have passed since the judge’s law firm referred any cases to the law firm that will be appearing in the judge’s court, some of those cases remain on a “deferred calendar” and potentially could generate fees, a portion of which would be payable to the judge. Therefore, the judge would have to disqualify him/herself when the law firm appears, subject to remittal, unless a party is self-represented or the matter is before the court ex parte (see id.; 22 NYCRR 100.3[E][1][b][I], [ii]). However, if the judge waives or renounces any or all fees with respect to any and all remaining referred cases, in a writing to the firm involved, the judge is not required to disqualify him/herself when the law firm appears in other, unrelated cases.

         The Committee notes that the judge should, if applicable, comply with the provisions of 22 NYCRR §603.7 and/or 22 NYCRR §691.20 (retainer and closing statement filing requirements).