Opinion 12-37

March 8, 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:         (1) A former judge of a court, other than an Appellate Division or the Court of Appeals, may practice law in his/her former court immediately upon leaving the bench. (2) A former judge is ineligible for appointments governed by Part 36 of the Rules of the Chief Judge for two years after the judge leaves judicial office in any court within the jurisdiction where the judge served. (3) A judge is not necessarily disqualified from presiding when a former judge of the same court appears before him/her. (4) Support magistrates, judicial hearing officers, and referees are disqualified, subject to remittal, when a former judge of the court in which they serve appears, for two years after the former judge’s term of office ends.

Rules:          CPLR 3104(c); 4301; Judiciary Law §212(2)(l); 22 NYCRR 16.1; 36.1; 36.2(c)(5); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); 100.6(A); 101.1; 122.11; Part 1200, Rule 1.12(a); Opinions 11-48; 10-155; 08-214; 08-98; 08-91; 07-198; 05-96; 05-29; 04-121; 94-14 (Vol. XII); 91-105 (Vol. VIII); Joint Opinion 07-114/07-120.

Opinion:

         A supervising Family Court judge asks whether a former judge of the Family Court who is now a practicing attorney may be assigned or appear as retained counsel to represent certain parties who may have been involved in cases in which the former judge presided. The inquirer notes that Family Court proceedings are not discrete cases limited to two parties, but typically involve numerous family members and multiple petitions filed over many years. The judge also asks about the ethical obligations of Family Court judges, referees, judicial hearing officers (JHO’s), and support magistrates when the former judge appears before them as an attorney.

         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]). In particular, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge is not necessarily disqualified from presiding when a former judge of the same court appears before him/her (see Opinion 08-98; 04-121). Rather, each currently presiding judge must determine whether his/her relationship with the former judge creates an appearance of impropriety or causes his/her impartiality to reasonably be questioned (see 22 NYCRR 100.2; 100.3[E][1]; Opinions 10-155; 04-121; 94-14 [Vol. XII]). The Committee has further advised that a judge may ask relevant questions to determine if a former judge’s current role representing clients presents a conflict or creates an appearance of impropriety (see Opinions 08-91; 05-96; 91-105 [Vol. VIII]).

         A judge’s disqualification may be subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]).¹ However, remittal is never available when a party appears without representation (see Joint Opinion 07-114/07-120).

         JHO’s and others who perform judicial functions within the judicial system also must comply with the Rules Governing Judicial Conduct in the performance of their judicial functions (see 22 NYCRR 100.6[A]; Opinions 11-48; 07-198; 05-29). Therefore, a support magistrate must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]; 100.6[A]), while referees and JHO’s must seek to be relieved from presiding in such circumstances (see CPLR 3104[c]; 4301; 22 NYCRR 100.6[A]; 122.11). But, while judges of the court are not necessarily disqualified from presiding when a former judge of the same court appears before them, the Committee has concluded otherwise in the case of referees and JHO’s whose former supervisor or employer appears (see Opinions 08-98 [court attorney referee is disqualified, subject to remittal, for two years after former judge’s term of office ends]; 08-91 [court attorney referee is disqualified, subject to remittal, for two years after chief court attorney and former supervisor’s employment with court ends]). In the Committee’s view, disqualification is required even if the sole contact between the former judge and the referee or JHO was the order of reference. A support magistrate also must disqualify him/herself, subject to remittal (see fn 1), when the former judge appears because Family Court judges review and approve a support magistrate’s determinations. However, in no case is remittal available when a party appears without representation (see Joint Opinion 07-114/07-120).

         With respect to a former judge’s practice of law in the court where he/she presided, the Committee previously has advised that a former judge of a trial court may practice law in that court immediately upon leaving the bench (see Opinions 08-214; 04-121).² However, whether the former judge may appear in certain cases or on behalf of certain clients presents a question of professional ethics that is beyond the scope of the Committee’s jurisdiction (see Judiciary Law §212[2](l); 22 NYCRR 101.1; Opinion 94-14 [Vol. XII]; cf. Opinion 90-136 [Vol. VI]).³

         Assuming the former judge is otherwise permitted to appear in a particular case, any court appointments governed by Part 36 of the Rules of the Chief Judge are prohibited within the first two years after the date the former judge left judicial office (see 22 NYCRR 36.1; 36.2[c][5] [no former judge shall be appointed within two years from the date the judge left judicial office by a court within the jurisdiction where the judge served]).

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     ¹ Remittal involves three steps. First, the judge must fully disclose the basis for disqualification on the record. For the judge in the present inquiry, full disclosure means advising the parties that the representation is on-going and/or that it occurred within the last two years, and of the nature of the representation. Second, following such disclosure, and without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see 22 NYCRR 100.3[F]). The judge then may continue to preside.

     ² The Committee recognizes that a different rule applies to appellate court judges (see 22 NYCRR 16.1 [former judge of the New York State Court of Appeals or former justice of the Appellate Divisions or Appellate Terms of the Supreme Court of the State of New York is prohibited from appearing in person in the Appellate Court on which he or she served within two years after having left such court]).

     ³ Pursuant to the Professional Conduct Rules, a lawyer is prohibited from accepting private employment in a matter upon the merits of which the lawyer has acted in a judicial capacity (22 NYCRR Part 1200, Rule 1.12[a]).