Opinion 20-40

July 15, 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).

Dear :

         We respond to your inquiry (20-40) about presiding in certain matters involving your former law partner, your court attorney’s former law firm, and your court attorney’s former clients. Although you and your court attorney did not practice law together, we understand you both ceased practicing law a few months ago.

1. Your Former Law Partner.

         You ask about your obligations when your former partner is serving as guardian ad litem (appointed by your predecessor judge) in a proceeding.

         You are disqualified, subject to remittal, from matters involving your former partners and associates for two years after your relationship with your former law firm completely ends (see Opinion 15-126). However, you must also assess any ongoing social relationship you may have with your former partners and associates, which may extend the period for some attorneys (see id.). During the disqualification period, you also may not appoint your former partners or associates to fiduciary positions (see id.).

         Accordingly, during the applicable disqualification period (at least two years) you must disqualify yourself in matters where your former partner appears as guardian ad litem appointed by your predecessor judge. However, if you believe you can be fair and impartial and no party is appearing without counsel, you may offer the parties and their counsel the opportunity to remit your disqualification. Where available, remittal is a three-step process (id. at fn 1 [citations omitted]):

First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she is able both to be 1) impartial and 2) willing to preside in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the proceeding’s record.

We again caution that remittal is not available without affirmative consent from all parties who have appeared and not defaulted, and their counsel.

         Enclosed for your review are Opinions 15-126 and 11-125.

2. Court Attorney’s Former Law Firm.

         When your court attorney’s former law firm appears, your obligations depend on whether the court attorney worked on and/or had knowledge of the specific matter before you in his/her former employment.

         If your court attorney had any involvement in the case whatsoever as a lawyer, even minimally, you must insulate the law clerk from the case and disclose the insulation (see Opinion 12-155). This insulation cannot be waived or remitted and does not expire (see Opinion 15-233). Once you have done so, you may preside in the case, even if a party objects, assuming you can be fair and impartial.

         Conversely, when your court attorney’s former law firm appears, but the court attorney had absolutely no involvement in the specific matter before you (i.e. he/she neither worked on nor had any knowledge of that specific case), you may preside in the case without any need for disclosure or insulation, assuming you can be fair and impartial (see Opinion 12-155).

         Enclosed for your review are Opinions 15-233 and 12-155.

3. Court Attorney’s Former Clients, Represented By Other Firms.

         Finally, you ask about your obligations when a client of your court attorney’s former law firm is a party to a proceeding before you, but is represented by a different law firm.

         Absent factors creating an appearance of impropriety, you need not insulate your court attorney in matters where a litigant was formerly your court attorney’s client in an unrelated action, as your court attorney had no involvement in the specific case before you (see Opinion 18-37). Accordingly, assuming you can be fair and impartial, you may preside in such matters without insulating or disclosing your court attorney’s former employment or former attorney-client relationship.

         Enclosed for your review is Opinion 18-37.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc Justice

                                                 Appellate Div., First Dept. (Ret)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Supreme Court Justice

                                                 Committee Co-Chair

Encls.