Opinion 18-79

May 10, 2018

Digest:         Where a judge discovers, after completing a hearing but before issuing the decision, that he/she had previously been disqualified in that same case solely because, at that time, the two-year disqualification period for former clients had not yet elapsed: (1) the judge may continue to preside and may dispose of the case, provided he/she can be fair and impartial; and (2) disclosure of the circumstances is entirely discretionary, but suggested. 

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(F); Opinions 15-51; 08-133; 01-71; 97-85; 95-05; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         For several years, the inquiring full-time judge disqualified him/herself in all matters involving a financial institution that was a client of the judge’s firm before the judge assumed judicial office. As it is now well beyond the two-year disqualification period and the judge believes he/she can be fair and impartial, the judge is now willing to preside in matters involving the former client, provided they were not pending with the judge’s former law firm while the judge was practicing there. After completing a recent trial involving this former client but prior to issuance of his/her decision, the judge discovered that, several years earlier, the judge had been disqualified in the matter. The sole ground for disqualification at that time was that the two-year disqualification period for former clients had not yet elapsed. The judge asks if he/she may continue to preside and whether disclosure is mandated.

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

         A judge must disqualify him/herself in a proceeding where a former client appears within two years after the representation completely terminated, subject to remittal (see Opinions 08-133; 01-71). The judge need not disqualify if a former client appears before him/her, on a matter unrelated to the former representation, more than two years after the representation ends (see Opinions 08-133; 01-71; 97-85; 95-05).

As more than two years elapsed, we conclude the judge’s impartiality cannot “reasonably be questioned” (see 22 NYCRR 100.3[E][1]), and the inquiry reveals no grounds for mandatory disqualification under Judiciary Law § 14 or the Rules. Thus, the trial judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

The judge also asks if he/she must disclose the former attorney/client relationship. We have advised that, “once the two-year period elapses, it should be 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” (Opinion 15-51).

Here, too, disclosure is discretionary. Nonetheless, under these unusual circumstances, we suggest the judge consider exercising his/her discretion toward full disclosure of (a) the former attorney/client relationship and (b) the circumstances of the previous disqualification. If the judge discloses, he/she should give all parties and counsel the opportunity to be heard.¹ We note there has been a significant change in circumstances, i.e. the passage of well over two years and the fact that this judge is no longer required to disqualify him/herself in matters involving this former client. Thus, we believe the judge may continue to preside and may dispose of the matter if he/she can be impartial and in the absence of a meritorious objection. In evaluating the merits of an objection, we have suggested that a judge consider “such factors as the amount of time elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety” (Opinion 08-133; see also Opinion 01-71).

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¹ Because disclosure is discretionary here, the judge is not required to disqualify him/herself if a party is appearing without counsel.