Opinion 17-167

December 7, 2017

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:         (1) With respect to attorneys who are personally involved in a judge’s first-degree relative’s representation in either a direct or supervisory capacity:

            (a) During the representation, the judge is disqualified, subject to remittal, when those attorneys appear before him/her. Remittal is unavailable if any party is appearing without counsel, if the judge is unwilling or unable to make full disclosure, or if the judge is uncertain he/she can be fair and impartial.

            (b) For two years after the representation ends, the judge may not preside in matters involving those attorneys unless all parties are represented by counsel and the judge makes full disclosure on the record. After disclosure, the judge may preside, even if a party objects, provided he/she can be fair and impartial.

            (c) After the two-year post-representation period, the judge has no further obligation and may preside in all matters involving those attorneys, provided he/she can be fair and impartial.

2) With respect to other attorneys in the same law firm who have no involvement whatsoever in the judge’s first-degree relative’s representation, the judge may preside as long as he/she can be fair and impartial, and has no obligation to disclose or disqualify him/herself.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 15-95; 15-88; 14-51; 13-132; 11-139; 09-141; Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.8(f)(2).

Opinion:

A judge asks about his/her obligations when the law firm defending his/her first-degree relative in a civil lawsuit appears before him/her. The judge notes that the law firm was retained by the insurance company of the judge’s second-degree relative.¹ The judge asks how long the obligation lasts and whether it extends to all attorneys at the law firm, even if they are not personally involved in representing the judge’s relative.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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 a proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

The only novel question here is whether different principles might apply because the lawyers defending the judge’s first-degree relative are retained and paid for by an insurance company. We believe the identity of the payor should not change the analysis (see e.g. Opinions 15-95; 09-141; cf. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.8[f][2] [lawyer must not accept payment for client’s legal fees from a third party unless, inter alia, “there is no interference with the lawyer’s independent professional judgment or with the client-lawyer relationship”]).

We therefore briefly reiterate the applicable principles from prior opinions.

In Opinion 15-88, a judge asked about his/her obligations in unrelated matters involving an attorney who was then representing the judge’s first-degree relative in a contested matrimonial action. We advised:

a judge must disqualify him/herself in a proceeding where an attorney who appears before the judge is currently representing the judge’s child in another matter. Disqualification while the attorney is representing the judge’s child is subject to remittal, unless one of the parties is self-represented. In the latter case, the judge may not preside.

For a period of two years after the representation ends, in any case where the attorney appears and all parties are represented, the judge must disclose that the representation occurred. After such disclosure, if a party objects to the judge’s continued participation in the matter, the judge must exercise discretion and determine whether recusal is warranted. However, if a party appears without representation during this two year period the judge must disqualify him/herself. Once the two year post-representation period ends, the obligation to disclose ceases.

As we advised in Opinion 13-132, the obligation does not extend to the entire law firm, but only to attorneys who have some personal involvement in representing the judge’s first- or second-degree relative:

the judge need not disqualify him/herself, or make any disclosure, for other attorneys in the law firm who are not personally involved in representing the judge’s relative in a direct or supervisory capacity – either during or after the representation.

As always, remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record (see id.). However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see id.; 22 NYCRR 100.3[F]).

Finally, if it proves “difficult for the judge to know which [attorneys] have worked on the judge’s [relative’s] case, and to what extent, as assignments within a law office may change, and attorneys who are not formally assigned to a matter may informally consult with other colleagues from time to time” (Opinion 11-139), the judge may wish to consider the practical alternative approaches outlined at the end of Opinion 13-132 and Opinion 14-51 to address this issue.

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¹ First-degree relatives include the children and parents of the judge and his/her spouse; second-degree relatives include grandparents, grandchildren, and siblings. When analyzing disqualification requirements, we do not distinguish between relatives by blood or by marriage.