Opinion 19-164

January 30, 2020

Digest:         A full-time judge whose former law firm colleague serves as a part-time non-supervisory conflict defender (1) may not preside in matters involving his/her former colleague for two years but (2) may preside in matters in which other attorneys from the conflict defender’s office appear.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 19-110; 18-113; 16-163/16-170; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A new full-time judge formerly practiced law in a private law firm. One attorney who was “of counsel” to the firm also worked, and continues to work, as a part-time conflict defender. There are several attorneys in the conflict defender’s office, and the judge asks if he/she may preside in matters involving the other conflict defenders.

         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 not allow family, social, political or other relationships to influence the judge’s conduct or judgement (see 22 NYCRR 100.2[B]), and must disqualify him/herself in a proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         On assuming judicial office, a judge is “disqualified, subject to remittal, in all matters involving his/her former law firm partners and associates for two years after the relationship completely ends” (Opinion 16-163/16-170). Thus, this judge must likewise disqualify him/herself in matters involving the attorney who was “of counsel” to his/her law firm.

         However, although disqualification is required for the attorney with whom the judge had a professional relationship, such obligation does not necessarily extend to that attorney’s public sector colleagues, with whom the judge never had any professional relationship (see Opinion 18-113). Nothing in the inquiry suggests the judge’s former colleague supervises the other conflict defenders (see Opinion 16-163/16-170 [judge’s former colleague “supervises all of the attorneys in the Public Defender’s office]).¹ In these circumstances, we believe the judge’s impartiality cannot “reasonably be questioned” in matters involving the other conflict defenders (22 NYCRR 100.3[E][1]). Accordingly, the judge may preside as long as he/she can be fair and impartial, a matter left solely to the “personal conscience of the court” as the “sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         Thus, while the judge is disqualified for two years in matters involving the attorney who was associated with the judge’s law firm, the judge may preside in matters involving other conflict defenders in the same office.

____________________________________

¹ Opinion 19-110 outlines our “practical, common-sense approach” to determining whether an attorney has a “supervisory role.”