Opinion 20-110

September 10, 2020

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:         (1) A part-time lawyer judge may serve as co-counsel on a matter with a private attorney who is a non-supervisory assistant conflict defender in the same county. (2) The judge may continue to preside in unrelated cases involving other attorneys from the conflict defender’s office, provided he/she can be fair and impartial, and disclosure is not required. (3) While the judge and attorney are serving as co-counsel on this case, and for two years after it completely terminates, the judge may not preside in matters involving the attorney unless he/she fully discloses the co-counsel relationship on the record. If any party is appearing without counsel, or if the judge doubts his/her own impartiality, the judge must simply disqualify him/herself.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3 (A); 100.3(E)(1); 100.3(F); 100.6(B)(1)-(5); Opinions 19-110; 19-25; 18-113; 14-14; 06-98; 06-63; 96-91; 91-120.

Opinion:

         A part-time lawyer judge wishes to enter into a co-counsel relationship with a private attorney on a particular case.¹ The judge’s prospective co-counsel also serves as a non-supervisory² assistant conflict defender in the same county, but is not assigned to the judge’s court. The judge asks if the co-counsel relationship is permissible and, if so, whether the judge may continue to preside in other matters involving the conflict defender’s office.

         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 proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), although disqualification may be remitted in appropriate circumstances (see 22 NYCRR 100.3[F]). Although a judge’s judicial duties take precedence over all his/her other activities (see 22 NYCRR 100.3[A]), a part-time judge may nonetheless practice law, subject to limitations (see generally 22 NYCRR 100.6[B][1]-[5]). For example, the judge must not practice law in a court on which he/she serves or in any other court in the same county before another part-time lawyer judge (see 22 NYCRR 100.6[B][2]; Opinion 06-98). Further, a part-time judge may not permit his/her partners or associates to practice law before any judge of his/her court (see 22 NYCRR 100.6[B][3]).

          We conclude this judge may act as compensated co-counsel on a case with a non-supervisory assistant conflict defender not assigned to his/her court. Just as “neither disclosure nor recusal is required if members of the Public Defender’s Office, not involved in the co-counsel arrangement, appear in [the judge’s] court” (Opinion 14-14), here, too, the judge may preside in unrelated matters if other members of the same conflict defender’s office appear, and need not disclose the co-counsel relationship.

         Finally, for completeness, we address the judge’s obligations in other, unrelated cases involving this assistant conflict defender. Initially, we note the judge and the attorney are not law partners or associated in the practice of law so as to trigger Section 100.6(B)(3)’s restrictions (see Opinion 18-113 [where an assistant public defender is associated with a part-time judge’s law firm, the judge must prohibit that assistant public defender from appearing before any judge of the court in which he/she presides]). Where a judge has a frequent, professional, ad hoc working relationship with an attorney, we said the judge is disqualified, subject to remittal, for two years after the relationship ends (see Opinions 91-120; 06-63). We also applied a two-year disqualification rule where the judge’s law firm had an uncompensated courtesy referral relationship with certain attorneys (see Opinion 19-25).

         Here, the sole connection is a one-time co-counsel relationship on a single case, as opposed to an ongoing or frequent business relationship. Thus, we now believe it sufficient to require disclosure in lieu of outright disqualification. So, when the assistant conflict defender appears, the judge may not preside without fully disclosing the co-counsel relationship on the record. Thus, assuming the judge can be fair and impartial and no party appears pro se, the judge may preside even if there is an objection. The disclosure period continues throughout the co-counsel relationship and for two years thereafter.³

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¹ We understand the judge would be compensated on a non-contingency basis.

² Opinion 19-110 describes our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office.

³ To the extent Opinion 96-91 suggests the disclosure obligation ends when “the law suit is finally resolved, including the dividing of the fee,” it is modified to extend the obligation for two years after the lawsuit completely ends, including any division of fees. We further modify Opinion 96-91 to reflect the current standards for mandatory disclosure: the judge must simply disqualify him/herself if any party is appearing without counsel, but he/she otherwise has full discretion to preside, even if a party objects after disclosure.