Opinion 18-46
March 29, 2018
Please Note: This opinion has been modified by Opinion 18-118. Of particular note, in circumstances where the judge will receive life-time annual retirement benefits from his/her former law firm and those annual benefits will for all practical purposes be administratively “fixed” on a specified date after the judge leaves the firm, please see Opinion 18-118 for guidance about the judge’s obligations with respect to the law firm’s former clients.
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: Where a full-time judge and his/her former law firm have an ongoing
financial relationship after the judge assumes the bench, the judge is
disqualified, subject to remittal, when a client or former client of the
firm appears before the judge. The obligation continues until two years
after that relationship completely ends, including return of any
distributed capital to the judge. After the two-year period, the decision
of whether to disclose or recuse is confined solely to the judge’s
discretion, after considering all relevant factors.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(I); 100.3(E)(1)(b)(i)-(ii); 100.3(E)(1)(c); 100.3(F); 500.23[a][4]; Opinions 17-181; 17-169/17-170; 17-150; 17-100; 16-160; 16-36; 15-51; 14-32; 13-54; 08-133; 98-29; 97-85; 92-01; 89-13; Corradino v Corradino, 48 NY2d 894 (1979); Kruger v Bloomberg, 1 Misc 3d 192 (Sup Ct, New York County 2013); Kemp v Rubin, 187 Misc 707 (Sup Ct, Queens County 1946).
Opinion:
A full-time judge who has been on the bench fewer than two years asks if he/she may preside in matters where a former client has submitted an amicus brief jointly with another entity, and the judge’s former law firm has no involvement in the matter.
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 also disqualify him/herself in any proceeding in which the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]), or in other circumstances as required by rule or law (see e.g. Judiciary Law § 14). For example, a judge must never preside in a proceeding if the judge knows he/she “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; 100.3[F]; Judiciary Law § 14) or “has a personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][1][a][i]; 100.3[F]). A judge is disqualified, subject to remittal, if he/she knows that a lawyer with whom the judge previously practiced law “served during such association as a lawyer concerning the matter” (22 NYCRR 100.3[E][1][b][ii]; 100.3[F]) or the judge has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]).
A judge is disqualified, subject to remittal, for two years in matters involving former clients of the judge or his/her former law firm when that client appears before the judge as a party (see Opinions 17-100; 15-51; 13-54; 08-133; 97-85; 92-01). It makes no difference during the disqualification period whether the judge was “personally” involved in representing that client (see e.g. Opinions 17-150; 16-36; 13-54; 08-133; 97-85; Corradino v Corradino, 48 NY2d 894 [1979]).1
For a full-time judge, the two-year period for former clients effectively runs from the complete termination of the judge’s relationship with his/her former firm and with the former client, whichever is later, regardless of whether the judge’s former law firm is involved in the representation (see Opinions 16-36 [two years “from the date on which the financial relationship between the judge and the law firm completely ends”]; 15-51 [“two years after the financial relationship between the judge and the former firm completely ends, including return of any distributed capital to the judge”]; 17-181 [two years from resolution of former client’s malpractice claim]; 17-169/17-170 [two years from complete termination of the attorney/client relationship, including “final payment of any fees pending or owed” to the judge]).
Whether the former client is appearing as a party or as an amicus curiae does not change the analysis. An amicus curiae typically “petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter” (Black’s Law Dictionary [10th ed 2014] amicus curiae).2 Regardless of whether amici assert a private or a public interest, they will almost certainly be adverse to at least one party in the case, since their key function is to “call the court’s attention to law or facts or circumstances in a matter then before it that may otherwise escape its consideration” (Kemp v Rubin, 187 Misc 707, 709 [Sup Ct, Queens County 1946]). We believe the asserted nature of amici’s interest in the subject matter (i.e. whether they are in the same line of business as a party or assert an interest focused on public policy, such as First Amendment rights) is largely irrelevant to the analysis. What is of consequence is that the judge presides fairly and impartially over a given proceeding, while avoiding even the appearance of impropriety (cf. Opinions 13-54; 89-13; 22 NYCRR 100.3[E][1]).
Thus, at this time, the judge must disqualify him/herself from a matter in which a former client appears as amicus. It does not matter that the former client is merely one of several amici filing a joint brief. After all, any party adverse to the former client’s position may feel disadvantaged by the recent attorney-client relationship. This remittal is subject to disqualification, where available.3
Once the two-year period has elapsed, however, it is within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant (see Opinions 15-51; 14-32). In exercising this discretion, we have advised (Opinion 15-51, quoting Opinion 14-32):
the following factors “bear on” whether a judge must continue to disclose that an attorney appearing before the judge previously represented the judge more than two years earlier: the nature of the instant proceeding, the nature of the prior representation by the attorney, as well as its frequency and duration, the amount of work done for the judge by the attorney and the amount of fee, whether the representation was routine or technical or involved the morality of the judge's conduct, whether there exists a social relationship between the judge and the judge's former attorney, and whether there are any other special circumstances creating a likely appearance of impropriety.
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1Of course, remittal is never available if the judge knows that he/she “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][I]).
2 A motion for amicus curiae relief shall demonstrate that: (i) the parties are not capable of a full and adequate presentation and that movants could remedy this deficiency; (ii) the amicus could identify law or arguments that might otherwise escape the Court's consideration; or (iii) the proposed amicus curiae brief otherwise would be of assistance to the Court (see 22 NYCRR 500.23[a][4]; Kruger v Bloomberg, 1 Misc 3d 192, 197 [Sup Ct, New York County 2013]).
3As a reminder, 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 e.g. Opinion 17-160). 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 is 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]). Of course, remittal may not be practicable in an appellate court, as disclosure of the basis for disqualification before submission or argument of the appeal may not be feasible (see Opinion 98-29).