Opinion 17-127

September 7, 2017

Digest:         A Surrogate may not appoint his/her former law firm associate as public administrator until two years from the complete termination of their business relationship, including final payment of any fees pending or owed between them.

Rules:          22 NYCRR 36.0; 36.1(a)(11); 36.2(c); 36.4(e); 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); Opinions 16-163/16-170; 15-126; 15-63; 11-125.

Opinion:

         The inquiring attorney is running for Surrogate's Court. Pursuant to SCPA Article 12, the Surrogate must appoint an individual to serve as Public Administrator for that county. If elected, the inquirer wishes to appoint an individual who has worked part-time for his/her law firm "for a period of less than two years." The inquirer expects the law firm to wind down its operations before the November election.

         We look first to Part 36 of the Rules of the Chief Judge concerning appointment of a public administrator. We see nothing in Part 36 that would prohibit the proposed appointment (see 22 NYCRR 36.1[a][11]; 36.2[c]; 36.4[e]).

         However, a judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]), and must disqualify him/herself whenever the judge's impartiality "might reasonably be questioned" (22 NYCRR 100.3[E][1]). A judge must exercise the power of appointment "impartially and on the basis of merit" and "avoid nepotism and favoritism" (22 NYCRR 100.3[C][3]; accord 22 NYCRR 36.0).

         On assuming judicial office, a judge is disqualified, subject to remittal, in all matters involving his/her former law firm partners and associates for two years after the relationship completely ends (see Opinions 16-163/16-170; 15-126).¹

         Moreover, during the disqualification period, a judge "may not appoint his/her former partners and associates to any fiduciary or counsel appointments" (Opinion 15-126). Accordingly, on assuming the bench, the inquirer may not appoint his/her former law firm colleague as public administrator until "two years from the termination of the relationship or final payment of any fees pending or owed between them, whichever is later" (id.; see also Opinion 15-63).

         After the disqualification period ends, the judge may appoint his/her former partner or associate to positions for which he/she is qualified, provided the judge does so "on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case" (22 NYCRR 36.0; accord 22 NYCRR 100.3[C][3]).

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         ¹A judge “must also assess any ongoing social relationship he/she may maintain with his/her former partners and associates in light of the Committee’s prior opinions, which may extend the period for some attorneys” (Opinion 15-126). If this applies, the inquirer should review Opinion 11-125 and/or seek further guidance as needed.