Opinion 15-38

 April 13, 2015

PERSONAL AND CONFIDENTIAL

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).

Dear   :

         This responds to your inquiry (15-38) asking about your ethical obligations when a former associate of your law firm, who is now an assistant district attorney, appears before you. You indicate that the former associate was interviewed and hired by your law partner, was never under your supervision, worked on matters in a different area of law than the cases over which you preside, never worked with you on any of your files and left your firm a year ago.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires a judge to disqualify himself or herself in a proceeding where the judge’s impartiality might reasonably be questioned. Notwithstanding your non-involvement with the hiring and subsequent performance of the associate, the Committee has previously concluded a judge’s impartiality might reasonably be questioned if he/she presides over matters handled by an attorney, recently associated with the judge’s law firm. Under these circumstances, the judge must disclose the prior relationship and disqualify him/herself for two years after the judge’s association with the attorney ends. However, the judge’s disqualification is subject to remittal pursuant to section 22 NYCRR 100.3(F) which provides, with certain exceptions, that a judge who is disqualified may continue to preside over the case if the parties, none of whom is appearing pro se, and their counsel, without the judge’s participation, all agree that the judge should not be disqualified and the judge believes that he or she will be impartial and is willing to participate. If the judge is unwilling or unable to make this disclosure, remittal is not available. Any such agreement must be incorporated in the record of the proceeding.

         Accordingly, since the associate left the firm a year ago, you may not preside over cases in which he/she appears for another year, unless disqualification is remitted.

         Enclosed, for your convenience, are Opinions 13-64; 03-57 and 91-143 which address this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.