Opinion 17-111

September 7, 2017

Digest:         A judge may preside over matters involving his/her former matrimonial counsel where the representation was brief and preliminary.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 16-30; 15-08; 14-102; 08-171/08-174; 08-165; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         Shortly after retaining counsel for representation in his/her matrimonial action, the inquiring judge was transferred to preside in another county, where the judge discovered that his/her newly retained matrimonial counsel was a member of the 18-B assigned counsel panel. The judge promptly notified his/her counsel of the new assignment and signed a consent to change counsel. The entire representation lasted only 30 days. After an initial and follow-up consultation, counsel’s sole work on the matter consisted of filing a notice of appearance and a request for judicial intervention. The judge now asks if he/she has any disclosure or disqualification obligations concerning this attorney and whether the obligation changes when the attorney appears as private counsel or as assigned counsel.

         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]). Therefore, 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]) and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14).

         Generally, a judge is disqualified, subject to remittal, during the pendency of his/her matrimonial action and for two years thereafter when the judge’s matrimonial counsel appears before the judge in other matters (see Opinions 15-08; 08-171/08-174). However, in some prior opinions, we have advised that a judge may preside in matters involving an attorney who represented the judge or the judge’s relative in a personal matter when the representation was truly “brief and preliminary” in nature (Opinion 16-30 accord Opinions 14-102; 08-165).

         Thus, we advised that a judge may preside over matters involving assistant public defenders, even though the new Public Defender preliminarily and briefly represented a judge in a disciplinary proceeding one year earlier as a private attorney (see Opinion 16-30). The lawyer had prepared and filed a short, non-substantive response to the disciplinary complaint and engaged in approximately five non-substantive telephone and email communications with the judge (see id.). We concluded the judge’s impartiality could not “reasonably be questioned” in those circumstances when the Public Defender’s office appeared (id., citing Opinions 14-102; 08-165).

         Similarly, in Opinion 14-102, we said a judge may preside over matters involving a lawyer who had been assigned as attorney for the child in the judge’s first-degree relative’s custody action, without disclosing that former representation or offering to disqualify him/herself, because the representation was brief and preliminary in nature. There, the attorney had interviewed both parents and child, but made no recommendations to the parties, attorneys or the court, did not appear in court, and returned the uncashed retainer check to the judge’s relative (see id.). We also advised that a judge’s impartiality could not “reasonably be questioned” in matters involving a District Attorney who commenced a prosecution of the judge’s child but was quickly replaced by the District Attorney of a neighboring county (see Opinion 08-165).

            Here, too, because counsel’s involvement in the judge’s matrimonial action lasted only one month and did not involve any substantive work, the judge’s impartiality cannot “reasonably be questioned” when his/her former counsel appears before him/her because the representation was brief and preliminary (22 NYCRR 100.3[E][1]; Opinions 16-30; 14-102; 08-165). Thus, provided the judge can be fair and impartial, he/she may preside in matters involving his/her former counsel, whether the counsel is appearing on behalf of private clients or is assigned by the court (People v Moreno, 70 NY2d 403 [1987]). The judge need not make any disclosure of the former representation, but may do so in his/her sole discretion.