Opinion 12-92
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: Under the circumstances presented, a part-time attorney-judge may
represent the board of directors of a large homeowners’ association
which is located within the geographic jurisdiction of the judge’s court.
The judge is disqualified, subject to remittal, when individual board
members or the association itself appear before the judge, but not when
individual homeowners or community residents appear before the judge.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(F); 100.4(C)(3)(a)(i); 100.6(B)(1); 100.6(B)(4); Opinions 11-64; 09-138; 09-19; 08-22; 01-72 (Vol. XX); 98-74 (Vol. XVII); 97-85 (Vol. XVI); 91-149 (Vol. VIII); 87-30 (Vol. I).
Opinion:
A part-time judge, who is also a practicing attorney, asks if he/she may represent the board of directors of a homeowners’ association for properties located within the geographic jurisdiction of the judge’s court.1 The judge states that the homeowners’ association is organized as a domestic not-for-profit corporation. According to the judge, more than 400 homes are located on the property, and the individual homeowners who are members of the association “are not owners or shareholders” of the association. Indeed, the judge emphasizes that “the only individuals with whom an attorney-client [relationship] exists are the individuals who comprise the board of directors” of the association. The judge states that he/she is not a member of the homeowners’ association and would not preside over any matter involving members of the association’s board of directors.
A judge must 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]). A part-time judge may practice law (see 22 NYCRR 100.6[B][1]) and may accept private employment that is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). A judge must not allow others to convey the impression that they are in a special position to influence him/her (see 22 NYCRR 100.2[C]) and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).
Almost 25 years ago, the Committee advised that “it would be improper for a part-time town justice to act as a legal advisor to a homeowners’ association involving homes situated within the geographical limits of [his/her] court’s jurisdiction” (Opinion 87-30 [Vol. I]). The Committee set forth four distinct reasons for this outcome, some of which have been abrogated.
First, the Committee advised that a part-time attorney/judge must not represent a residents’ association in his/her municipality because it was “reasonably possible, if not likely,” that the association would “take political positions on ... issues of concern to its members,” or engage in activities promoting the economic or political advantage of its members, which could create an appearance that the association’s attorney-judge was participating in prohibited political or economic activity (see id.). In the Committee’s view, this reasoning has effectively been abrogated (see, e.g., Opinion 98-74 [Vol. XVII] [part-time judge may act as a legal advisor to a controversial advocacy organization “as long as an attorney-client relationship exists and the judge’s actions are clearly identifiable as those of an attorney representing a client”]). The Committee notes that a rule attributing all of a client’s activities and views to the client’s lawyer-judge misconstrues the nature of the attorney-client relationship and would severely limit the judge’s legal practice.
Second, the Committee advised that a part-time attorney/judge must not represent the association because the “activities of the organization or of its many members” would likely “become the subject of court proceedings” before the judge (Opinion 87-30 [Vol. I]). For this proposition, Opinion 87-30 (Vol. I) relies on a provision substantially similar to Section 100.4(C)(3)(a)(i). On reconsideration, the Committee notes that this provision, by its terms, applies only to service as “an officer, director, trustee, or non-legal advisor” (22 NYCRR100.4[C][3][a]
[1]); it does not apply to a part-time lawyer/judge’s employment as a legal advisor. The proper standard is that a part-time judge “may accept private employment . . . provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).
Accordingly, the Committee need consider only the two remaining rationales. Opinion 87-30 (Vol. I) states that: (1) litigants who “live in the neighborhood served by the residents’ association will have an edge, be it conscious or not” when they appear before the judge, because of the attorney-client relationship between the judge and the association; and (2) because the judge should exercise disqualification whenever any individual member of the association appear as a party,“an excessive number of” disqualifications could result.
The Committee believes that Opinion 87-30 (Vol. I) is distinguishable under the facts currently presented. There is no indication in Opinion 87-30 (Vol. I) of the size of the subject residents’ association. In contrast, according to the inquiring judge, the homeowners’ association he/she would represent comprises 400+ homeowner/members. In the course of representing the association, the judge is not likely to have personal interactions with the homeowner/members, but instead will advise only the members of the board of directors. Under these circumstances, it would not be reasonable to assume that an attorney who represents a large homeowners’ association will know all of the 400+ homeowners who are members of the association, let alone all the hundreds of additional family members or tenants who may reside on the premises. Nor would it be reasonable for members of the public to believe that hundreds of community residents “will have an edge” merely because the inquiring judge has an attorney-client relationship with the association itself. The Committee therefore believes that the judge’s impartiality cannot reasonably be questioned when homeowners or community residents appear before the judge, based solely on the judge’s attorney-client relationship with the association, through its board of directors (see 22 NYCRR 100.3[E][1]).
For the reasons set forth above, the judge need not disclose or recuse when members of the homeowners’ association or community residents appear before the judge, provided that disqualification is not otherwise mandated by rule or law and the judge can be fair and impartial (see generally 22 NYCRR 100.3[E][1]; Judiciary Law §14; Opinion 11-64 [“if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside”]).
However, the judge is disqualified, subject to remittal, when the homeowners’ association or its individual board members appear before the judge (see generally Opinions 09-19 [judge is disqualified, subject to remittal, when a police sergeant currently represented by the judge’s law firm is called to testify before the judge]; 01-72 [Vol. XX] [judge who serves on the board of directors of a hospital is disqualified, subject to remittal, when the hospital is a party or otherwise involved in a matter before the judge]; 97-85 [Vol. XVI] [judge is disqualified, subject to remittal, where a party appearing before the judge was a client of the judge’s law firm within the preceding two years]).2 But, if the need for disqualification becomes so frequent that it interferes with the judge’s ability to properly perform his/her judicial duties, he/she must either cease representing the association, or resign from judicial office (see generally Opinions 08-22; 91-149 [Vol. VIII]; 22 NYCRR 100.6[B][4] [judge may not accept private employment that conflicts or interferes with the proper performance of the judge’s duties]).
Accordingly, under the circumstances presented, the Committee concludes that the inquiring part-time attorney-judge may agree to represent a homeowners’ association located within the geographic boundaries of the judge’s court.
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1 Because the inquiring judge has not stated that the board of directors is a separate legal entity, the Committee assumes, for the purpose of this opinion, that the judge’s actual client would be the homeowners’ association.
2 As described in Opinion 09-138, 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 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]).” Remittal is not available if any party is appearing pro se (see Opinion 09-138).