Opinion 19-11
February 26, 2019
Dear :
This responds to your inquiry (19-11) asking whether you may appoint an otherwise eligible attorney, who had previously represented your first-degree relative, to a Part 36 appointment in a pending proceeding. You indicate that the prior representation ended over a year ago, the attorney has been paid in full, and no further legal work regarding your relative is anticipated.1
The Committee has advised that a judge must disclose his/her first-degree relative’s relationship with the appearing attorney for a two-year period after the representation has completely concluded and all fees are paid. Thus, the judge may not preside if he/she is unwilling or unable to make full disclosure regarding the attorney’s relationship with the judge’s first-degree relative. Moreover, during this two-year period, the judge may not appoint the attorney to any fiduciary or counsel positions.
After the required two-year disclosure period ends, you may appoint the attorney for positions for which he/she is eligible, provided the appointment is made “impartially and on the basis of merit” (22 NYCRR 100.3[C][3]). If a party objects to your continued participation in the case based on the appointment, whether to exercise recusal is solely within your discretion.
Enclosed, for your convenience, are Opinions 18-32 and 15-126 (Question 3) which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice (Ret.) Appellate Div., First Dep’t
Committee Co-Chair
Hon. Margaret T. Walsh
Justice, Supreme Court
Committee Co-Chair
Encls.
1Under these circumstances, the fact that you and your spouse have no social relationship with your first-degree relative’s attorney does not affect the outcome.