Opinion 18-173

December 11, 2018

Digest:         A part-time lawyer judge (1) need not disclose the relationship nor insulate a court clerk from a criminal case merely because the protected party under an order of protection is a social acquaintance of the court clerk and (2) need not disclose nor disqualify based on a former attorney/client relationship with the defendant’s parents in an unrelated matter that concluded more than three years earlier.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 16-64; 15-51; 14-81; 11-125; 95-05; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time lawyer judge asks if he/she may preside in a criminal case where (1) his/her court clerk is an acquaintance of a protected party under an order of protection in the proceeding and (2) the judge’s law firm previously represented the defendant’s parents on an unrelated matter more than three years ago. The judge understands the clerk’s interactions with the protected party have been very limited, and their relationship is that of “acquaintances” under Opinion 11-125, rather than a “close social relationship” or “close personal relationship.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

1. Acquaintance-Level Social Relationship Between the Court Clerk and the Protected Party

         A judge’s obligation based on his/her social relationship with an attorney “depends on such factors as the nature of the relationship with the attorney, the inter-relationships among their respective immediate family members, the frequency and context of their contacts, and whether they or their respective family members share confidences” (Opinion 11-125). We identified “three broad categories of interpersonal relationships” in Opinion 11-125 to provide guidance in the analysis (id.), and have applied them to other social relationships (see e.g. Opinions 14-81 [relationship between judge and litigant]; 16-64 [relationship between court attorney and counsel]).

         Of particular note, where interactions between a judge and an attorney arise from “happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization,” they are deemed mere “acquaintances” (Opinion 11-125). Neither disclosure nor disqualification is required, because “the mere fact that a judge is acquainted with and cordial to an attorney who appears before the judge when they come into contact outside the court -- even if such contacts are regular or periodic -- without more, is not a reasonable basis to question the judge’s impartiality” (id.).

         Accordingly, neither disclosure nor insulation is required where, as here, the protected party is merely an “acquaintance” of the court clerk under Opinion 11-125 with no other relevant connections between them (see e.g. Opinion 16-64 [judge need not disclose or insulate court attorney where the court attorney’s relationship with an attorney in the case is at the “acquaintance” level]).

2. Former Representation of Defendant’s Parents Three Years Ago

         A judge is disqualified, subject to remittal, when a current or recent former client of the judge’s law firm appears before the judge (see Opinions 15-51; 95-05 [part-time lawyer judge]). In general, this obligation continues until two years after the financial relationship with the former client completely ends (see Opinion 15-51). Thereafter, the judge has no further obligation with respect to the former client and the decision of whether to disclose or recuse is confined solely to the judge’s discretion after considering all relevant factors (see id.).

         Clearly, these precedents do not require disqualification or disclosure here. The part-time judge’s law firm did not represent the defendant, but only his/her parents; and in any event, the representation completely terminated more than two years earlier.

Conclusion

         Where, as here, disqualification is not mandated under an objective standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Thus, provided the judge believes he/she can be fair and impartial, he/she may preside, and need not make any disclosures concerning (1) the court clerk’s mere acquaintance-level relationship with the protected party or (2) his/her law firm’s former attorney/client relationship with the defendant’s parents.

         Should the judge choose, in his/her sole discretion, to make disclosures, he/she may do so as a purely prophylactic measure without incurring any obligation to disqualify him/herself (see e.g. Opinion 16-54).