Opinion 20-135

September 10, 2020

Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).

Digest:         Where a judge is aware that an attorney before him/her was recently an associate in a law firm that is currently representing the judge, but is satisfied that the law firm’s former associate (1) had absolutely no awareness of or involvement in the judge’s representation while employed by the firm, (2) has fully ceased employment with the firm, and (3) has no ongoing business or financial relationship with the firm, disclosure is solely within the judge’s discretion.

Rules:          22 NYCRR pt 100, Preamble; 100.2; 100.2(A); 100.3(E)(1); Opinions 16-54; 15-114; 08-171/08-174.

Opinion:

         The inquiring judge is currently represented by a law firm in a personal legal matter. A junior associate of that firm recently left the firm to become an assistant public defender, and is now assigned to the judge’s court.¹ Since the judge was not familiar with this attorney, the judge asked the firm whether its former associate had had any involvement in the judge’s representation. In response, the law firm provided a statement from its former associate affirming he/she had no involvement or awareness of the representation whatsoever while at the firm.

         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]). A judge must disqualify in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         When a judge retains legal counsel, the usual rule for partners and associates in the same firm who have no personal involvement in the representation is set forth in Opinion 08-171/08-174:

(1)     While a judge is represented by an attorney in a personal legal matter, the judge must disqualify him/herself … when any of the judge’s personal attorney’s partners and/or associates appear in the judge’s court. The judge’s disqualification is subject to remittal only if the judge believes that he/she can be impartial and only if the judge is willing to disclose fully that the appearing attorney’s partner and/or associate is representing the judge in a personal legal matter and the nature of the representation.

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       (3)(a) Once the judge’s personal legal matter is

concluded … , (b) [for a period of two years], when the judge’s personal attorney’s partners and associates who had no involvement in the judge’s representation appear, if the judge is willing to preside, he/she must fully disclose the fact and nature of the representation. If a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion.

         As the Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR pt 100, Preamble), we have on rare occasions deviated from these requirements. For example, where an attorney represented the judge at a single negotiation session in the judge’s matrimonial matter and “completely insulated” his/her associates “from any involvement in the case,” we did not require disclosure of the prior representation when those fully insulated associates appeared before the judge during the two-year period after the negotiation session (Opinion 15-114).²

         Here, although the judge’s personal legal matter is ongoing, it appears the former associate has fully severed his/her connections with the law firm. Moreover, the attorney has also affirmed that he/she had no involvement or even any awareness of the representation while at the firm. In effect, the former associate was completely insulated from the representation while at the firm and will not have any involvement in it, now that he/she has left the firm. On these facts, we can see no basis on which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1] [emphasis added]).

         Accordingly, if the judge is satisfied that the assistant public defender (1) had absolutely no awareness of or involvement in the judge’s representation while employed by the law firm, (2) has fully ceased employment with the firm, and (3) has no ongoing business or financial relationship with the firm, the judge has no obligation to disqualify him/herself or make any disclosure. The judge may, in his/her sole discretion, make a disclosure as a purely prophylactic measure without incurring any further obligation, even if a party is appearing without counsel (see Opinion 16-54).

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¹ The judge learned of the new assistant public defender’s former employment essentially by happenstance.

² Opinion 15-114 confusingly states that “if a judge’s attorney’s associates had no involvement in the judge’s case, the judge may preside when they appear.” To the contrary, disqualification is required during the representation and then disclosure is ordinarily mandated for those associates during the first two years after the representation has fully concluded; only after the two-year period has elapsed may the judge preside without disclosure (see Opinion 08-171/08-174). As explained herein, we now recognize Opinion 15-114 carved out an exception for that fully concluded one-shot representation on the unusual facts presented.