Opinion 16-14

April 13, 2016

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 is in response to your inquiry (16-14) asking several questions about your ethical obligations in light of your previous employment and recent judicial campaign.

         1) Former Law Firm. You indicate that you were a principal of a private law firm and a member of an entity which owns the law firm’s real property. Your employment with the law firm ended some years ago, but your business and financial connections with these two entities did not completely end until December 2015 (both entities made their final payments to you in December). Based on these facts, you ask about your ethical obligations in cases where the law firm appears.

         If you had any direct involvement with the matter in question, you are disqualified from presiding in that matter, and the disqualification is not subject to remittal (see 22 NYCRR 100.3[E][1][b][i]; 100.3[F]).

         Otherwise, for two years from the time all business and financial connections with the firm completely ended, you are disqualified, subject to remittal, from matters in which the law firm appears.

         After that two-year period, disclosure is within your discretion, but not required.

         Enclosed, for your convenience, are Opinions 15-63; 05-147; 00-67; and 94-05 which address these issues.

         2) Former Campaign Supporters. You further inquire about your obligations when the following attorneys or their law firm colleagues appear before you:

          (a) the former co-chair of your campaign committee (a partner in your former law firm) who was “directly responsible for fund raising.”

         Since the co-chair of your campaign committee is a partner in your former law firm, you are already disqualified, subject to remittal, for the period addressed above in all matters involving your former firm.

         Otherwise, for a co-chair of your campaign committee, you are disqualified, subject to remittal, from matters in which that attorney appears for two years following the conclusion of your campaign. After that two-year period elapses, you should continue to disclose the prior relationship and consider a discretionary recusal if requested, unless a party appears without counsel in which case you must recuse yourself.

         (b) attorneys who served in active campaign roles and were chiefly involved in event scheduling and fund-raising.

         As to attorneys who served actively in your election campaign, who were mainly involved in event-scheduling and fund raising, the requirement largely depends on the level of involvement in the campaign. If the involvement is more than minimal, but less than the level of a campaign chair or treasurer, there should be disclosure for two years when these specific attorneys appear; this does not extend to their law firm colleagues.

         (c) attorneys whose names appeared on campaign committee letterhead.

         As to attorneys whose names appeared on campaign letterhead, no disclosure or recusal is required provided you conclude you can be fair and impartial.

         Enclosed, for your convenience, are Opinions 12-164; 09-245; 08-152; 07-26; 06-54; 03-64; 97-129; and 90-182 which address these issues.

         3) Prior Employment as the County Attorney. You also ask about your ethical obligations stemming from your prior tenure as the County Attorney.

         You are disqualified from cases that were pending or under investigation during your tenure as County Attorney, and remittal is not available in those cases.

         However, you may preside over unrelated matters that were not pending or under investigation while you were in office, even involving a particular person who was a former respondent whose previous case is unconnected with any new, current case, provided you can be fair and impartial.

         If you become aware of a relevant connection between a new case involving the County Attorney’s office and a prior case during your tenure as County Attorney, you must fully disclose the connection between the cases. This disclosure is mandated in lieu of outright disqualification. Thus, if you are not legally permitted to make full disclosure (for example, if disclosure would breach your obligations of confidentiality), then you must simply disqualify yourself, without the possibility of remittal.

         Enclosed, for your convenience, are Opinions 14-32; 14-10; and 14-07 which address these issues.

         4) Law Clerk’s Former Employment. Finally, you ask about your ethical obligations in light of your law clerk’s prior employment with a private law firm.

         You are not necessarily disqualified from presiding in matters involving your law clerk’s former employer.

         If the law clerk was personally involved in any particular matter as a private attorney, you must insulate the law clerk from that case and disclose the insulation; there is no expiration to this requirement.

         Enclosed, for your convenience, are Opinions 15-43; 14-07; 12-155; 09-27; and 07-105/07-119 which address these issues.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice

                                       Appellate Division, First Dep’t (Ret.)

                                       Committee Chair

Encls.