Opinion 19-104

October 24, 2019

Please Note: Opinion 22-183 states, “Opinions 19-104, 19-93, 18-42, 17-76, 15-08, 10-99, 10-56, and 08-171/08-174 are modified to reflect that, after the two-year period, whether to disclose is solely within the judge’s discretion.” Please refer to Opinion 22-183 for additional information. 

Digest:     Where a judge and his/her first-degree relative, as co-fiduciaries of a family trust, retain counsel to negotiate a contract for the trust:

(1) During the representation, the judge is disqualified, subject to remittal, in all matters involving that attorney or his/her partners and associates. During this period, if any party is appearing without counsel, remittal is unavailable and the judge cannot preside.

(2) For the first two years after the representation completely terminates, the judge is disqualified, subject to remittal, in all matters involving the individual attorney(s) who personally participated in the representation. For other partners and associates who did not personally assist in the representation, disclosure is mandated in lieu of outright disqualification during this period. Again, at this stage, if any party is appearing without counsel, the judge cannot preside.

(3) After the two-year post-representation period, the judge’s continuing obligation to make a disclosure in matters involving the individual attorney(s) who personally participated in the representation depends on the particular facts and circumstances presented in each case. For other partners and associates who did not personally assist in the representation, the judge has no obligation to disclose or recuse.

Rules:       22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 18-42; 17-76; 16-130; 10-56; 08-171/08-174.

Opinion:

         This judge and his/her first-degree relative¹ are co-fiduciaries for a family trust. The trust plans to sign a contract and the co-fiduciaries wish to retain a lawyer to negotiate terms. Once the attorney is retained, the judge asks if he/she may preside if that attorney appears, either on behalf of other clients or as a party. The judge expects the trust’s legal fees will be reimbursed by another contracting party.

         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]). Thus, a judge must disqualify him/herself in any matter where “the judge’s impartiality might reasonably be questioned” (see 22 NYCRR 100.3[E][1]).

         We believe the same standards should apply if the judge retains counsel in his/her fiduciary capacity, as where a judge retains counsel in his/her individual, private capacity. Thus, we look to Opinion 08-171/08-174 and its progeny for guidance.

During the Representation - Entire Firm

         Once a judge retains an attorney in his/her fiduciary capacity, the judge must disqualify him/herself whenever the attorney appears in the judge’s court during the representation (see Opinions 17-76; 08-171/08-174). If the retained attorney has partners or associates, the judge must likewise disqualify him/herself when they appear in the judge’s court, whether or not they are personally involved in the representation (id.).

         Only after remittal in compliance with Section 100.3(F) and prior opinions may the judge preside in the matter (see Opinion 17-76). As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:

As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. 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 be 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.

The judge must fully disclose “the fact and nature of the representation” on the record (Opinion 08-171/08-174). If he/she is unwilling to do so, he/she must not preside.

         After the Representation Ends. Once the representation is fully concluded and the legal fees are paid,² the judge’s obligations differ based on whether the attorney appearing before the judge was, or was not, personally involved in the representation.

         Personally Involved: First Two Years. For two years after the representation ends, the judge must continue to disqualify him/herself whenever any attorney who was personally involved in the representation appears in the judge’s court. Again, the judge’s disqualification is subject to remittal subject to all the same caveats discussed above (see Opinions 17-76; 08-171/08-174).

         Personally Involved: After the Two-Year Period. After that two-year period elapses, “our prior opinions initially call for mandatory disclosure” (Opinion 18-42 [citations omitted]). As described in Opinion 18-42:

That is, if the judge is willing to preside and all parties are represented by counsel, he/she must fully disclose the fact and nature of the prior representation (see [Opinion] 08-171/08-174). Thereafter, if a party objects to the judge’s participation in the case, whether to exercise recusal is solely within the judge’s discretion (see id.). Nonetheless, we have recognized that the need for continuing disclosure of a former representation may diminish over time in some circumstances (see Opinion 10-56). Factors relevant to disclosure may include the nature of the prior representation, its frequency and duration, the amount of work performed and the size of the fee, whether the representation was routine or technical or involved the morality of the judge’s conduct, and whether there is a social relationship between the judge and the attorney or any special circumstances creating a likely appearance of impropriety (see id.).

         Attorneys Who Had No Involvement: First Two Years. For two years after the representation ends, disclosure is required in lieu of disqualification for partners and associates who had no involvement in the representation. This means the judge may not preside in matters involving these attorneys unless he/she is willing and able to make full disclosure. In addition, the judge may not preside if a party is appearing pro se. However, after disclosure, if a party objects to the judge’s participation in the case, whether to exercise recusal is solely within the judge’s discretion (see Opinions 17-76; 08-171/08-174).

          Attorneys Who Had No Involvement: After the Two-Year Period. After the two-year period of mandatory disclosure, the judge has no further obligation with respect to partners and associates who had no involvement in the representation. Thus, although the judge may disclose the law firm’s former representation, it is not required; and disqualification is entirely within the judge’s discretion, even if a party objects (see Opinions 17-76; 08-171/08-174).

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¹ First-degree relatives include the judge’s or his/her spouse’s parent or child, or the spouse of such person.

² The fact that the other contracting party, rather than the judge and/or the judge’s first-degree relative, will pay the attorney’s legal fees does not affect the judge’s ethical obligations.