Opinion 19-93

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.

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.”

Digest:         A judge who is currently disqualified, subject to remittal, in matters involving a particular attorney has the same obligation in cases where that attorney, although not physically present, may have previously appeared per diem in the case or is likely to appear per diem in that case in the future.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 10-56; 08-171/08-174.

Opinion:

         A housing court judge is currently disqualified, subject to remittal, in matters involving his/her former matrimonial attorney.¹ A law firm occasionally hires this attorney to appear on a per diem basis. The attorney is not an associate, partner, or regular employee of the firm and does not file a notice of appearance or prepare any pleadings or papers when appearing on its behalf. Rather, the law firm remains the attorney of record and its name appears on all pleadings and papers. The judge asks if he/she may handle certain matters where a tenant (possibly pro se) files an emergency application to stop an eviction, and this law firm appears in opposition. Specifically, the judge asks about the scenario where, although the judge’s former matrimonial attorney is not participating in the emergency application, the attorney either (1) “may have previously appeared per diem in the case” or (2) “may or is likely to” appear per diem in the case in the future.

         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]). Therefore, a judge must disqualify him/herself in any proceeding where the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

We note the judge’s obligation at this stage -– during the first two years after the representation is completely concluded –- is to disqualify him/herself when his/her personal attorney appears, subject to remittal where permitted (see Opinion 08-171/08-174). For other partners and associates of the attorney, who had absolutely no involvement in the judge’s former representation, disclosure is required in lieu of outright disqualification during this period (see id.).

         Clearly, if the judge’s former matrimonial attorney appears before him/her on an emergency application, the judge is disqualified, subject to remittal (see id.). For this purpose, it does not matter that the landlord’s formally retained counsel is a law firm that merely hires the attorney on an occasional, per diem basis. We note that the disqualification is subject to remittal only if no party is appearing without counsel, the judge believes that he/she can be impartial, and the judge fully discloses fully the fact and nature of the representation (see Opinion 08-171/08-174).

         The question here is more difficult, as the judge does not know whether or not his/her matrimonial attorney has appeared or may appear in the case as a per diem attorney; the judge only knows that the law firm that sometimes hires his/her matrimonial attorney on a per diem basis. We conclude the judge is disqualified, subject to remittal, in matters where the judge believes his/her former matrimonial attorney “may have previously appeared,” or “is likely” to appear, in the specific case before him/her -- even though that attorney is not present in court on the emergency application. Again, the disqualification is subject to remittal only if no party is appearing without counsel, the judge believes that he/she can be impartial, and the judge fully discloses fully the fact and nature of the representation.

         Finally, as a reminder, after the two-year period ends, disclosure remains mandatory for an unspecified period when the judge’s former personal attorney appears, although the need for disclosure may diminish over time (see Opinion 10-56). When disclosure is mandated in lieu of outright disqualification, the judge must disqualify him/herself if a party is appearing pro se. If a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion (id.).

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¹ The former representation is completely terminated, but the two-year period has not yet expired.