Opinion 18-84

May 10, 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:         A judge may not preside where a pending motion was prepared by a law firm representing the judge and his/her family in various litigated and transactional matters, even though the client has substituted new counsel. Remittal of the judge’s disqualification is not possible where a party is self-represented.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 17-185; 17-167; 17-86; 17-76; 13-132; 08-171/08-174.

Opinion:

         The inquiring judge routinely disqualifies him/herself from all matters in which a particular law firm appears, because the firm has an ongoing attorney-client relationship with the judge and his/her family.¹ The judge now asks if he/she may preside in a case where the law firm formerly represented one of the parties. Although the party retained new counsel shortly before the case was scheduled to go before the judge, one of the motions awaiting decision was prepared and submitted by that law firm. The papers bear the firm’s name and address and contain the requisite certification and affirmation of an attorney who, according to the judge, has “most likely” personally represented the family’s interests. The opposed motion is dispositive. One party appears without a lawyer.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is disqualified whenever his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when specifically required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]).

         This law firm represents the judge and the family in their ongoing interests. Thus, he/she is disqualified, subject to remittal, if the firm appears (see Op. 08-171/08-174; 17-76).²

         The new wrinkle here is that the law firm that represents the judge and his/her family is no longer involved in the case, as the party has retained new counsel and thus the law firm will not appear before the judge. However, the firm prepared and submitted a motion now pending and awaiting decision.

         Clearly, preparing and submitting motion papers constitutes the practice of law. Motion papers do not lose their significance or efficacy merely if the attorney who originally prepared and submitted them is relieved as counsel. As seen here, the motion may be considered and may result in granting or denying the relief sought. An attorney’s prior submissions in a case could potentially result in contempt, sanctions or malpractice claims, even after he/she has ceased involvement in the matter.

         In Opinion 17-86, a judge had “received papers for filing..., which were apparently [submitted] by a pro se litigant. However, several items in the filing [bore] the name of the co-judge’s law partner and law firm, creating a clear impression ... the co-judge’s law partner prepared the papers.” The co-judge’s law partner did not personally appear before the court and the judge asked “if he/she may nonetheless accept these papers for filing, and thereafter preside in the summary judgment proceeding, provided the co-judge’s partners and/or associates do not personally appear” (id.). Noting that “a judge must not permit the partners or associates of his/her part-time lawyer co-judge to engage in the practice of law before him/her,” we advised (id. [citations omitted]):

As the Committee has previously observed, “the practice of law is not confined to appearances in court, but includes all actions taken on behalf of clients in matters connected with the law.” Thus, it includes actions taken on behalf of firm clients or litigants who will appear pro se, without any in-person appearance by counsel. Here, the judge has received documents for filing which display the name of his/her co-judge’s law firm and law partner. These documents, on their face, clearly suggest the co-judge’s partner was directly involved in preparing the litigant’s submissions. These facts, at the very least, will create an appearance of impropriety for this judge to accept the papers for filing and preside in the matter.

         Similar concerns underlie our conclusion that, despite substitution of new counsel, the pending motion, prepared and served by the law firm, requires disqualification of the inquirer. Moreover, because a party to the litigation is appearing without counsel, remittal is not possible (see e.g. Opinion 17-185).

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¹ The firm handles litigation and transactions relating to certain interests of the judge and his/her family.

² A judge’s obligation to disqualify is broader for his/her own personal attorneys, or those who represent the judge’s interests, than for attorneys who represent his/her first- or second-degree relatives. In the former case, the judge’s obligation extends to the entire firm; in the latter, the obligation extends only to attorneys who are personally involved, either in a direct or supervisory capacity, in the relative’s representation (see Opinions 17-167; 13-132; 17-76).