Opinion 15-51

March 19, 2015

Please Note: This opinion has been modified by Opinion 18-118. Of particular note, in circumstances where the judge will receive life-time annual retirement benefits from his/her former law firm and those annual benefits will for all practical purposes be administratively “fixed” on a specified date after the judge leaves the firm, please see Opinion 18-118 for guidance about the judge’s obligations with respect to the law firm’s former clients.  

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:         A full-time judge is disqualified, subject to remittal, when a client or former client of the judge’s former law firm appears before the judge. This obligation continues until two years after the financial relationship between the judge and the former firm completely ends, including return of any distributed capital to the judge. After that period, the judge has no further obligation with respect to the former client; the decision of whether to disclose or recuse is confined solely to the judge’s discretion after considering all relevant factors.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i)-(ii); 100.3(E)(1)(c); 100.3(F); Opinions 15-63; 15-05; 14-32; 13-64; 13-54; 10-56; 09-107; 09-19; 08-133; 07-55; 05-32; 03-13; 01-71; 00-67; 97-85; 95-05; 94-71; 92-14; 92-01; 89-88; 89-13; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge, on the bench for under two years, asks if disqualification is required in a case involving a current or former client of the judge’s former law firm. The law firm is not involved in the case before the judge, and the judge does not know whether the firm still represents this client in any capacity.¹ The judge says he/she practiced law with the firm for about two decades before becoming a judge, but had minimal contact with this client. The firm also owes the judge undistributed capital. The judge believes he/she can be fair and impartial.

         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 also disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), or in other circumstances as required by rule or law (see e.g. Judiciary Law § 14), including when the judge knows that he/she previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]), that a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter (see 22 NYCRR 100.3[E][1][b][ii]), or that the judge has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]).

         The Committee previously advised a judge should disqualify him/herself, subject to remittal, where a party before the judge was a client of the judge’s law firm on another matter and the representation ended fewer than two years before the appearance date (see Opinions 13-54; 08-133; 97-85; 92-01).² In the Committee’s view, this procedure is required because the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and the judge’s timely disqualification prevents any possible appearance of impropriety (see Opinions 13-54; 89-13).

         The Committee believes the two-year period should apply here as well. However, on these facts, where there are ongoing financial connections or obligations between the judge and firm, and the judge does not know if the law firm’s representation of the client has ended, the two-year period should start from the date on which the financial relationship between the judge and the law firm completely ends, including return of any undistributed capital to the judge (see e.g. Opinions 15-63 [noting that the relationship is “not entirely severed until all financial obligations between the judge and the firm have completely ended, so that no further potential contingency or compensation payments, outstanding rents, or other financial connections exist between the judge and law firm.”]; 00-67 [judge who will be receiving compensation in concluding a business relationship with the judge’s former law partner has recusal obligations “for a period of two years from the last payment to the judge”]).

         As for what should happen after the two years have elapsed, the Committee advised in Opinion 14-32 (citations and ellipses omitted):

The Committee has previously advised that the Rules Governing Judicial Conduct do not specify a precise time period beyond which a judge’s impartiality can no longer be “reasonably questioned” based on his/her now concluded representation of a former client. However, the Committee has also suggested that, when an attorney currently appearing before the judge previously represented the judge in a legal matter, the need for disclosure may eventually diminish over time. In Opinion 10-56, the Committee advised the following factors “bear on” whether a judge must continue to disclose that an attorney appearing before the judge previously represented the judge more than two years earlier: the nature of the instant proceeding, the nature of the prior representation by the attorney, as well as its frequency and duration, the amount of work done for the judge by the attorney and the amount of fee, whether the representation was routine or technical or involved the morality of the judge's conduct, whether there exists a social relationship between the judge and the judge's former attorney, and whether there are any other special circumstances creating a likely appearance of impropriety.

         Although Opinion 14-32 involved a criminal trial in which the judge’s former client would likely be called as a witness, and Opinion 10-56 involved an appearance by a judge’s former personal attorney, the Committee believes the insight in those opinions – i.e., that the need for disclosure based solely on a former attorney-client relationship may diminish over time – applies equally to the circumstance where the judge’s former client appears as a litigant.

         Therefore, on further consideration, the Committee believes that, once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant. Accordingly, Opinions 09-107, 09-19, 08-133, 07-55, 05-32, 03-13, 01-71, 97-85, 95-05, 94-71, 92-14, 92-01, 89-88, and 89-13 are hereby modified to the extent inconsistent with this view. In exercising his/her discretion as to whether or not to make disclosure after the two-year period has elapsed, the judge should consider factors such as “the amount of time elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety” (Opinion 08-133, quoting Opinion 01-71).

         Because disclosure is purely discretionary after the two-year period ends, a judge who chooses to disclose voluntarily is not thereafter required to disqualify him/herself if a party is appearing without counsel (see e.g. Opinion 15-05) or if a party objects to the judge’s continuing to preside (People v Moreno, 70 NY2d 403, 405 [1987] [where disqualification is not mandated, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court”]).

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         ¹ The law firm practices in a different area of law than the type of case currently before the judge.

           ² This line of opinions necessarily addresses the situation where the judge did not previously participate as a lawyer in the case before him/her. Where a judge previously “served as a lawyer in the matter” (22 NYCRR 100.3[E][1][b][i]), disqualification is not subject to remittal (see 22 NYCRR 100.3[F]; Opinion 13-64).