Opinion 15-45
March 19, 2015
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: Although a judge must assess his/her current relationship with a lawyer
who was formerly a close personal friend in order to decide if disclosure
or disqualification is required in cases where the former friend is
personally involved, any such obligations do not automatically extend to
the attorney’s colleagues or subordinates in a public law office.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 15-63; 14-90; 12-85(B); 11-125; 11-45; 08-204; 08-166; 07-114/07-120; People v Moreno, 70 NY2d 403 (1987).
Opinion:
A full-time judge states that an attorney who was formerly the judge’s close personal friend and law partner is currently seeking a position in a government law office, such as the public defender’s office or the county attorney’s office. Although the judge and the attorney had been friends since childhood, the inquiring judge has advised the Committee that both the professional and social relationships between the judge and his/her former friend completely terminated more than five years ago and the two are no longer on speaking terms. The judge now asks whether he/she may preside when the attorney’s colleagues or subordinates from a government law office appear before the judge, on matters in which the judge’s former friend is not personally involved.1
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]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify him/herself in cases where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and in other specific circumstances required by rule or law (see generally id.; Judiciary Law §14). However, when a judge’s disqualification is not mandated under objective criteria, the judge is the sole arbiter of disqualification (see People v Moreno, 70 NY2d 403 [1987]).
Because the prior professional relationship, and all related business and financial relations between the judge and the attorney, were severed over five years ago, the judge has no further obligations based solely on that former professional relationship (see e.g. Opinion 15-63). Thus, this inquiry only raises issues regarding the personal or social relationship between them.
Whether the particular relationship between a judge and attorney may reasonably cause a judge’s impartiality to be questioned is a fact-specific determination (see Opinion 11-125). The Committee has advised that the presiding judge is generally in the best position to assess whether his/her impartiality might reasonably be questioned when an attorney whom the judge knows appears before him/her (see id.). Nevertheless, in Opinion 11-125, the Committee characterized the interpersonal relationships between judges and the lawyers who appear before them into three categories to help judges determine what, if any, ethical obligation those relationships impose on the judge.
Succinctly, the relationship categories are acquaintance, close social relationship and close personal relationship (see id.). In an acquaintance relationship where the judge and attorney mainly see each other in unplanned environments or when socializing with mutual friends, a judge is neither required to disclose the relationship nor disqualify him/herself, but should make reasonable efforts to avoid private social activity with any attorney acquaintance who will be appearing before the judge on actual trial days (see id.). Where the judge has a close social relationship with an attorney appearing before him/her, the judge must disclose the relationship, but disqualification is within his/her discretion, provided no party is appearing pro se (see id; see also Opinion 08-166 [where the attorney worked for several years in the judge’s firm before law school and one year after; subsequently maintained his/her practice in a shared space for two years; and maintained a social relationship involving their respective families, including the judge’s children’s participation in the attorney’s wedding and employment as babysitters and dinner once a year with spouses]). Lastly, where a judge and attorney maintain a close personal relationship, the judge’s impartiality might reasonably be questioned if the judge presides in matters involving the attorney (see id.). Thus, a close personal relationship between a judge and attorney requires disqualification, subject to remittal (see Opinion 11-125).2 Of course, additional factors may complicate the analysis in any specific set of facts. For example, the Committee has advised that a judge is disqualified, subject to remittal, from matters involving his/her former law partner, where their professional relationship terminated less than three years ago and their families maintain an ongoing social relationship with many significant ties between them (see Opinion 11-45 [judge and attorney have known each other since childhood and previously practiced law together in their hometown; their families continue to socialize often; their children are close friends; and the attorney is the godparent of the judge’s child]).
Here, the relationship the inquiring judge describes was formerly a close personal relationship, which spanned the length of their childhood through their practice of law together. Moreover, it appears that the relationship may not have faded into mere indifference, but instead evokes such strong feelings that the two are no longer on speaking terms. Accordingly, the judge should carefully consider the categories of relationship described in Opinion 11-125 and determine whether disclosure or disqualification is required in light of their current estrangement (see generally Opinion 11-125; People v Moreno, 70 NY2d 403 [1987]). If the judge believes he/cannot be impartial, disqualification is required in matters where the judge’s former friend is personally involved.
The Committee has previously advised that a judge’s obligation to disqualify him/herself based on a social relationship with an attorney does not automatically extend to the attorney’s colleagues (see Opinions 14-90; 12-85[B]). Indeed, the Committee has advised that a “judge’s impartiality cannot ‘reasonably be questioned’ merely because an attorney appearing before the judge reports to an individual who is the judge’s long-time, close personal friend,” where there is “no indication ... that the judge has any direct relationship – social, professional, or otherwise – with” those attorneys (Opinion 14-90).
Thus, if the judge believes he/she can be fair and impartial, and despite his/her decision about the former friend, the judge may continue to preside in cases involving the former friend’s subordinates and colleagues in the same public law office, where the judge’s former friend is not personally involved in the case.
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1 It is unclear, at this stage, whether the judge’s former friend will assume supervisory responsibilities as the head of the agency or will become a staff attorney.
2 Remittal is unavailable when a party is self-represented (see Opinions 08-204; 07-114/07-120).