Opinion 14-62

April 24, 2014

Digest:         A judge may preside over a case where a party currently appearing before him/her is also an attorney who regularly appears before the judge, provided the judge concludes he/she can be fair and impartial. The judge does not thereby incur any obligation to disclose or disqualify him/herself in other matters in which the attorney or his/her law firm appears.

Rules:          Judiciary Law §14; 100.2; 100.2(A); 100.3(E)(1)(a)-(g); 100.3(E)(1)(a)(I); Opinions 11-64; 09-239; 92-49 (Vol. IX); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time judge states that a party currently appearing before him/her as a defendant in a civil action has “regularly appeared” before the judge as the attorney of record in other cases. The judge is confident that he/she can be fair and impartial in matters involving the attorney, regardless of the capacity in which the attorney appears, but asks whether he/she now has any obligation to disclose or disqualify him/herself in matters involving the attorney or the attorney’s law 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]). Thus, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][I]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[g]; Judiciary Law §14).¹

         The Committee has previously advised that part-time judges are not disqualified from presiding in actions commenced by a local attorney to collect fees, merely because the attorney has “an active practice” in the judges’ court and thus “frequently appears before them” (Opinion 92-49 [Vol. IX]). The Committee explained its reasoning as follows (id.):

An attorney has the same right as any other citizen to resort to the courts to enforce his or her contractual rights. If the claim presented by the attorney in question comes within the territorial and monetary jurisdiction of the judges’ court, and the only relationship between the judges and the attorney is that the attorney has an active practice in their court, then the judges have no valid basis to disqualify themselves. The judges can avoid an appearance of partiality or impropriety by treating the attorney in the same manner as they would treat any other litigant in their court, provided the justices feel that they will be impartial.

         Similarly, the Committee has advised that a judge need not disqualify him/herself when an attorney who regularly appears in the judge’s court previously testified as a witness in a proceeding before the judge, even where the judge had to assess the attorney’s credibility as a witness in reaching a decision (see Opinion 09-239).

         The Committee can see no reason to apply a different rule here. Accordingly, the inquiring full-time judge may preside over a case where a party currently appearing before him/her is also an attorney who regularly appears before the judge, provided the judge concludes he/she can be fair and impartial. Moreover, the judge does not thereby incur any obligation to disclose or disqualify him/herself in other matters in which the attorney or his/her law firm appears, again provided the judge concludes he/she can be fair and impartial in such matters.

_________________

     ¹ There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[g]) or Judiciary Law §14. If none of those enumerated circumstances applies, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). Where, as here, disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).