Opinion 17-76

May 4, 2017

Please Note: As of the Committee’s April 29, 2021 meeting:

(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where the basis for recusal involves the judge’s knowledge of an attorney’s disciplinary proceeding and confidentiality has not been waived. 

(2) Opinion 21-45 discusses the apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10); we cannot resolve legal questions.

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).

Please Note: Opinion 22-183 states, “Opinions 19-104, 19-93, 18-42, 17-76, 15-08, 10-99, 10-56, and 08-171/08-174 are modified to reflect that, after the two-year period, whether to disclose is solely within the judge’s discretion.” Please refer to Opinion 22-183 for additional information. 

Digest:         A judge must disqualify him/herself in cases involving a law firm that is representing the judge’s first-degree relative and former law partner in a disciplinary investigation of their joint IOLA account. Remittal is not available unless the judge can fully disclose the fact and nature of the representation, and how it affects the judge’s interests, without violating his/her relative’s right to confidentiality.

Rules:          Judiciary Law § 497; 22 NYCRR 100.0(C); 100.3(E)(1); 100.3(F); Opinions 16-130; 16-66; 13-132; 10-56; 09-21; 08-183/08-202/09/112; 08-171/08-174; 00-97.

Opinion:

         The inquiring full-time judge previously practiced law with his/her first-degree relative.¹ When the the judge assumed the bench, the judge’s relative began winding up the partnership. Now, the relative advises that an attorney grievance committee is investigating the partnership’s IOLA account (see Judiciary Law § 497). Although the judge has not received any direct notice of the investigation and his/her name has not appeared on the grievance committee’s communications, the judge and his/her relative were the sole signatories on the account. The judge’s relative has retained an attorney to represent him/her in the grievance committee’s investigation. The judge asks if he/she must disclose or recuse in matters involving the retained attorney’s law firm, which regularly appears before the judge. Indeed, one matter involving the law firm is fully tried or submitted and awaiting decision by the judge.

         Ordinarily, when a judge’s first- or second-degree relative hires an attorney, the judge’s obligations are limited to the specific attorneys who are or were personally involved in representing the judge’s relative, whether in a direct or supervisory capacity (see Opinion 13-132). That is, the judge need not recuse in all matters involving the law firm, provided the attorneys appearing before him/her have no involvement whatsoever in the representation (see id.; see also Opinion 16-66 [summarizing the judge’s obligations during and after the representation]).

         The legal representation here, however, will reasonably be perceived as encompassing the judge’s own personal and professional interests. Although the grievance committee did not formally notify the judge of its investigation, the judge was a signatory on the firm’s IOLA account that is under investigation. Because the attorney retained by the judge’s relative is also, at this time, indirectly representing the judge’s personal and professional interests, the Committee believes the analysis should proceed as if the judge had personally retained the attorney.

         During the Representation - Entire Firm. Accordingly, this judge must disqualify him/herself, while the representation is ongoing, whenever that attorney or any of his/her partners and associates, appears in the judge’s court (see Opinion 08-171/08-174). The disqualification is subject to remittal only if the judge believes he/she can be impartial and only if the judge fully discloses the fact and nature of the representation and how it affects the judge’s interests (see id.). If the judge is not willing or able to make full disclosure, remittal is not available and the judge must simply disqualify him/herself. This obligation continues while the representation is ongoing and until all fees are paid and encompasses all matters involving the law firm, including, but not limited to, the case which is fully submitted and currently awaiting decision by the judge (see e.g. Opinion 00-97; 22 NYCRR 100.3[E][1]).

         However, before making the full disclosure necessary for remittal, the judge must consider that his/her relative and former law partner appears to be the focus of the grievance committee’s investigation and is entitled to keep the existence of the investigation confidential. This Committee has previously advised that an attorney’s right to confidentiality both during and after a disciplinary proceeding is “paramount” (Opinions 09-21; see also Opinion 08-183/08-202/09/112). Ordinarily, then, unless the judge’s relative has waived his/her right to confidentiality, the judge will not be able to preside in matters involving the law firm.

         If the judge concludes that confidentiality has been waived or is legally inapplicable and that he/she can be fair and impartial, he/she may offer the parties an opportunity to remit disqualification. The judge must fully disclose on the record the fact and nature of the law firm’s representation and how it affects the judge’s interests. Only after remittal in compliance with Section 100.3(F) and prior opinions² may the judge preside in the matter. If the judge prefers to say nothing about the pending grievance committee investigation or if confidentiality has not been waived, the judge must withdraw from any proceeding in which that firm is materially involved (see Opinion 00-97).

         After the Representation Ends. Once the representation is fully concluded and all fees are paid, the judge’s obligations differ based on whether the attorney appearing before the judge was, or was not, personally involved in the representation.

         Personally Involved: First Two Years. For two years after the representation ends, the judge must continue to disqualify him/herself whenever any attorney who was personally involved in the representation appears in the judge’s court. Again, the judge’s disqualification is subject to remittal subject to all the same caveats discussed above (see Opinions 09-21; 08-183/08-202/09/112; 08-171/08-174).

         Personally Involved: After the Two-Year Period. After that two-year period, disclosure is required in lieu of disqualification when these attorneys appear (see Joint Opinion 08-171/08-174). Again, the judge may not preside if a party is appearing pro se or if the judge is not willing and able to make full disclosure (see id.). However, after disclosure, if a party objects to the judge’s participation in the case, whether to exercise recusal is solely within the judge’s discretion (see id.).

         The Committee notes that, in some circumstances, the need for disclosure of a former representation may eventually diminish over time (see Opinion 10-56 [discussing several factors for a judge to consider in making such a determination]).

         Attorneys Who Had No Involvement: First Two Years. For two years after the representation ends, disclosure is required in lieu of disqualification for partners and associates of the law firm who had no involvement in the representation. This means the judge may not preside in matters involving these attorneys unless he/she is willing and able to make full disclosure. In addition, the judge may not preside if a party is appearing pro se. However, after disclosure, if a party objects to the judge’s participation in the case, whether to exercise recusal is solely within the judge’s discretion (see Opinion 08-171/08-174).

          Attorneys Who Had No Involvement: After the Two-Year Period. After the two-year period of mandatory disclosure, the judge has no further obligation with respect to partners and associates of the law firm who had no involvement in the representation. Thus, although the judge may disclose the law firm’s former representation, it is not required; and disqualification is entirely within the judge’s discretion, even if a party objects (see Opinion 08-171/08-174).

________________________

         ¹ A first-degree relative includes a child, step-child, parent, or step-parent (cf. 22 NYCRR 100.0[C]).

         ² As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:

As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. 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.