Opinion 18-171

December 11, 2018

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) Where a law firm is retained by a full-time judge’s first-degree relative to wind up the affairs of their former joint law practice at the conclusion of a highly confidential representation that directly affected both their interests as former law partners:

(a) The judge is disqualified, subject to remittal, in all matters involving this law firm during the pendency of the representation.

(b) For the first two years after the representation completely terminates and all fees are paid: (i) the judge is disqualified, subject to remittal, from all matters involving attorneys who were personally involved in the representation and (ii) the judge must make full disclosure of the former representation when other attorneys from the law firm appear, in lieu of outright disqualification.

(2) If the judge concludes in good faith, after careful consideration of all relevant factors, (a) that a party’s belated retention of this law firm as co- counsel in a case is undertaken primarily or solely for judge-shopping purposes and (b) that the judge can nonetheless be completely fair and impartial in the case, the judge may continue to preside in the matter, provided that the judge (i) makes at least a minimal disclosure of the general nature of the conflict and (ii) fully discloses the basis for his/her conclusion that the retention of counsel is strategic in nature and why he/she believes he/she can be impartial.

(3) Whether the judge may hold a hearing to determine if a party is attempting to engage in judge-shopping presents a legal question beyond our jurisdiction.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 101.1; Opinions 17-76; 17-67; 16-55; 16-23; 09-137; 08-171/08-174; 08-91; 05-96; 05- 30; 94-94; 91-105; 90-74; 88-54.

Opinion:

         Before assuming the bench, the inquiring full-time judge practiced law jointly with a first-degree relative. The judge’s relative previously retained counsel (Law Firm X) in a highly confidential matter that directly affected both their interests as former law partners. Once that matter concluded, the judge’s relative retained Law Firm X to wind up the affairs of their former law practice. Accordingly, the judge initially asks how long he/she is disqualified from matters in which Law Firm X appears.

         The judge’s remaining questions flow from a case currently before the judge in a specialized area of law. Although Law Firm X does not seem to advertise this area of law as one of its practice areas, a party recently retained Law Firm X as co-counsel in the case (a) after the judge made a decision unfavorable to that party and (b) after Law Firm X learned that the judge was disqualifying him/herself from its cases. For these and other reasons, the judge believes Law Firm X was strategically retained as co-counsel in order to force the judge’s recusal. Under these circumstances, the judge asks if he/she may preside without disclosure of the conflict. Finally, the judge asks if he/she may ethically hold a hearing to ascertain whether or not the party is attempting to engage in judge shopping through its choice of 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]). A judge must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Although the law firm has recently completed its initial, highly confidential representation, it continues to represent the judge’s relative in winding up the business of their former firm. Inasmuch as the windup of the firm’s business here implicates the interests of both the judge and his/her relative, we believe “the analysis should proceed as if the judge had personally retained the attorney” (Opinion 17-76; accord Opinion 17-67). Accordingly, the judge is disqualified, subject to remittal, during the pendency of this new representation (see Opinion 08-171/08-174). Thus, the two-year period of disqualification for attorneys personally involved in the representation, and of mandatory disclosure in lieu of disqualification for other attorneys in the firm, will begin to run only once this new representation terminates and all fees are paid (see generally id.). For remittal of disqualification, or for disclosure in lieu of disqualification, full disclosure is required; if the judge is unwilling or unable to make “full disclosure on the record of the fact and nature of the representation and how it affects the judge’s interests,” he/she must simply disqualify him/herself (Opinion 17-67; see also Opinion 17-76). Likewise, if any party is appearing without counsel in a matter involving Law Firm X during the relevant period, the judge must disqualify him/herself (see e.g. Opinion 08-171/08-174).

         The novel question here is whether these obligations may be diminished where the judge is convinced that a party has retained Law Firm X as co-counsel for essentially strategic reasons in an effort to remove him/her from the case. We have said, typically in instances involving an attorney or litigant filing complaints or lawsuits against the judge, that so long as the judge believes he/she can be impartial, he/she “is not required to permit such ‘judge shopping’” (Opinion 94-94), “which this Committee strongly opposes” (Opinion 88-54). Thus, in Opinion 90-74, we advised that a judge was not required to recuse when a substitution of conflicted defense counsel in a quasi-criminal proceeding occurred prior to sentencing, and it appeared to the judge that the substitution was made to secure recusal. “The Rules Governing Judicial Conduct do not require a judge to reward improper behavior by litigants, attorneys, or witnesses by giving them a veto over a particular judge” (Opinion 16- 23).

         Here, too, if the judge concludes in good faith, after careful consideration of all relevant factors, (a) that a party’s belated retention of this law firm as co-counsel in a case is undertaken primarily or solely for judge-shopping purposes and (b) that the judge can nonetheless be completely fair and impartial in the case, the judge may continue to preside in the matter after making two disclosures. First, in lieu of the usual full disclosure of the basis for disqualification, we believe it will be sufficient here for the judge to make a minimal disclosure of the general nature of the conflict, i.e. that his/her relative retained Law Firm X in connection with their former joint law practice. Under these unique facts, it is not necessary to make further disclosure of the nature or extent of the representation. Second, the judge must fully disclose the basis for his/her conclusion that the retention of counsel is strategic in nature and why he/she believes he/she can be impartial. As usual, where disclosure is mandated in lieu of outright disqualification, if any party is appearing without counsel, or if the judge is unwilling or unable to make the required disclosure, the judge must simply disqualify him/herself.

         Whether the judge may hold a hearing to determine if the party is endeavoring improperly to engage in judge shopping presents a legal question beyond our jurisdiction (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1). If, however, the judge determines that it is legal to hold such a hearing, we see no ethical bar to doing so (see Opinion 16-55 [“a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically”]; cf. Opinion 09-137 [“a judge who directs a pre-trial conference based upon controlling statutory language, per se acts ethically, even if an appellate court later reverses on the ground that the judge’s statutory interpretation was erroneous”]; see also Opinions 91-105 [judge may inquire as to possible conflict of interest]; 05-96 [judge may ask relevant questions to determine if a former court attorney’s current role representing clients in the judge’s court creates a conflict of interest]; 08-91 [same as to former chief court attorney]; 05-30 [judge may inquire as to whether attorney’s continued representation of a client presents a conflict of interest]).