Opinion 21-120

September 9, 2021

Digest:         A judge’s obligation to disqualify in matters involving their former campaign manager terminates two years after the campaign manager relationship has ended. Once the two-year period expires, the judge may preside in matters involving the former campaign manager, provided the judge can be fair and impartial, and disclosure is not required. Opinions 06-54 and 07-26 are overruled or modified to the extent inconsistent with this conclusion.

Rules:          Judiciary Law §§ 14; 16; 22 NYCRR 36.1(a)(9); 36.2(c)(4)(ii); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.6(B)(2)-(3); Opinions 19-75; 16-114; 16-54; 15-126; 15-38; 13-150; 12-08; 11-125; 07-26; 06-63; 06-54; 03-57; People v Moreno, 70 NY2d 403 (1987).

Opinion:

 The inquiring full-time judge asks if it is mandatory to disclose or disqualify in matters involving a part-time attorney judge who (a) presides in a different court from the inquiring judge; (b) is currently a social “acquaintance” of the judge; (c) was a junior associate in the judge’s private law office for six years, ending over a decade ago; and (d) served as the judge’s campaign manager during one campaign over a decade ago.

         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]). Judges must disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by specific rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). However, where disqualification is not mandated, a trial judge is the sole arbiter of whether recusal is warranted. It is a discretionary decision “within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         As prior opinions make clear that the first three grounds do not require disclosure or disqualification here, we will address them briefly and then focus on the fourth ground, which is also the judge’s key concern.

         Judicial Status. The fact that the attorney is also serving as a part-time judge, in a court other than the inquiring full-time judge’s court, is not a circumstance that requires disclosure or disqualification in matters involving the attorney (see Opinions 19-75; 16-114; 16-54; 13-150; cf. 22 NYCRR 100.6[B][3]).²

         Social Relationship. Where, as here, a judge has a mere “acquaintance”-level social relationship with an attorney, neither disqualification nor disclosure is required as long as the judge believes they can be fair and impartial (see Opinion 11-125). Any decision to disclose or recuse is confined to the judge’s sole discretion.

         Former Law Firm Colleague. We have said that a judge is disqualified, subject to remittal, for a two-year period in matters where the judge’s former law firm colleagues appear, running from the time of the complete termination of their former business and financial relationship (see e.g. Opinions 15-126; 15-38; 03-57). Here, the two-year period has long since elapsed, and the judge has no obligation to disclose this former professional relationship or to offer to recuse on this basis.

         Former Campaign Manager. We previously advised that a judge must disqualify for a period of two years after the conclusion of a campaign for judicial office, in any matters in which the judge’s former campaign manager is personally involved (see Opinions 07-26; 06-54). The disqualification is subject to remittal (see id.). After the two-year period, we said the judge should continue to disclose the attorney’s prior role as the judge’s campaign manager, and should seriously consider recusal if requested (see id.). However, we did not address when, if ever, the disclosure obligation should end.

         In reconsidering what should happen after the two-year period elapses, we note that Part 36 bars a judge from appointing a person who served as “campaign chair, coordinator, manager, treasurer or finance chair” for the judge’s judicial campaign, “or the spouse, sibling, parent or child of that person, or anyone associated with the law firm of that person ... for a period of two years following the judicial election” (see 22 NYCRR 36.1[a][9]; 36.2[c][4][ii]). Part 36 does not, on its face, impose any disclosure requirement if the judge appoints such persons after the two-year period ends.

         Moreover, we have not imposed an ongoing disclosure requirement in matters involving a judge’s former law firm associates, once the two-year disqualification period ends (see e.g. Opinions 15-38; 07-26; 03-57; see also Opinions 12-08 [applying two-year rule to a firm that had exchanged professional referrals with the judge’s firm]; 06-63 [applying two-year rule to an attorney who had a “professional, ad hoc working relationship with” the inquiring part-time judge on the judge’s client’s criminal case]).²

         On further consideration, we believe that disqualification for a two-year period after the campaign manager relationship ends is ordinarily sufficient to attenuate any reasonable concerns about a judge’s ability to be fair and impartial in matters involving the former campaign manager. For simplicity and consistency, we conclude that there is no need to mandate any disclosure after that two-year period ends. Opinions 06-54 and 07-26 are overruled or modified to the extent they are inconsistent with this conclusion.

         Of course, if the judge questions their own ability to be fair and impartial in a case involving their former campaign manager, the judge must not preside. But this determination is left to the judge’s sole discretion.

         Conclusion. Putting all four factors together, we conclude the inquiring judge’s impartiality cannot reasonably be questioned in a proceeding merely because an attorney (a) is a part-time judge in another court; (b) is currently a social “acquaintance” of the judge; (c) was the judge’s law firm associate more than two years ago; and (d) served as the judge’s campaign manager more than two years ago. Thus, assuming the inquiring full-time judge can be fair and impartial, they may preside in matters involving this attorney and need not make any disclosure.

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1 We note that the attorney was a non-judge while serving as the inquirer’s campaign manager; the attorney sought and obtained judicial office a few years afterward.

² Of course, a part-time lawyer judge may not practice law in the court on which the judge serves, even before a full-time judge of that court (see Judiciary Law § 16; 22 NYCRR 100.6[B][2]).

³ Of course, if a judge has a close social relationship with a former law firm colleague, “any additional ongoing social factor may extend the period of disqualification” for that attorney (see Opinions 15-126; 11-125).