Opinion 21-164
October 28, 2021
Digest: Provided the judge is satisfied they can be fair and impartial, the judge may preside in a case where (1) the plaintiff is an attorney who frequently appears before the judge and was previously co-counsel with the judge’s sibling on several discrete cases and (2) plaintiff’s counsel rents office space in the same office as the judge’s sibling and also is an elected county legislator representing the district where the judge resides.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 21-14; 20-110; 19-76; 17-130; 15-33; 14-120; 14-91; 14-62; 10-151; 09-239; 08-76/08-84/08-88/08-89; 07-122; 06-111; 03-10; 95-35; 92-49; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring city court judge asks if they may preside in a civil action, given that (1) the plaintiff “frequently appears” before the judge as “attorney of the day and on-call attorney ... with the Assigned Counsel program” and was previously co-counsel with the judge’s sibling “on several high-profile criminal cases” and (2) plaintiff’s counsel “rents office space in the same office” as the judge’s sibling and also is an elected county legislator representing the district where the judge resides.
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]). A judge is disqualified in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
We note, initially, that there is no indication here that the judge’s sibling has any involvement or interest in the case before the judge. Nor does the inquiry suggest that any litigant or attorney in the case is the partner or associate of the judge’s sibling (see Opinion 06-111) or has a current, ongoing business relationship with the judge’s sibling (cf. Opinion 95-35 [judge should recuse in cases involving appearances by a law firm, where the judge’s spouse, who is a lawyer, has a continuing counsel relationship with the law firm, and not merely a retainer interest in occasional, separate, discrete cases]).
We do not believe the judge’s impartiality can reasonably be questioned merely because plaintiff’s counsel “rents office space in the same office” as the judge’s sibling (see e.g. Opinion 14-91).
We have not previously considered whether a judge may preside in a matter in which one of the attorneys also serves as the judge’s local elected representative in the county legislature. Still, several prior opinions are instructive here. Initially, we note that a state-paid judge is not disqualified in matters involving state legislators, even though the state legislature sets the judge’s salary (see e.g. Opinion 08-76/08-84/08-88/08-89 [“we have previously determined that the relationship between a State-paid judge and State Legislator is too remote to mandate recusal on the basis of the Legislature's control over judicial pay”]). We believe the relationship between a county legislator and a judge who resides in the district is similarly remote. Moreover, we do not require disclosure or disqualification solely because a political party’s county leader appears as an attorney before a judge who is currently seeking the party’s support for elective judicial office, “provided the county leader is not playing an active and significant role within the judge’s campaign and the judge can be fair and impartial” (Opinion 19-76). Nor is a judge disqualified in a tax certiorari case “merely because he/she resides in the town or school district where the tax refund is sought” (Opinion 10-151). Here, too, we believe the judge’s impartiality cannot reasonably be questioned merely because plaintiff’s counsel is a county legislator who represents the judge’s district.
We have also advised that a judge is not disqualified in a matter merely because a litigant or witness before them is an attorney who regularly practices before the judge (see e.g. Opinions 17-130; 14-120; 14-62; 09-239; 07-122; 92-49). We likewise conclude here that the judge’s impartiality cannot be reasonably questioned merely because plaintiff is also an attorney who regularly appears before the judge.
Finally, we believe the judge’s impartiality cannot reasonably be questioned merely because the plaintiff was previously co-counsel with the judge’s sibling “on several high-profile criminal cases.” We note that a judge is disqualified, subject to remittal, when their sibling’s law partners or associates appear before the judge (see Opinion 06-111). A judge is also disqualified in matters involving a law firm when the judge’s sibling has “a continuing counsel relationship” with the firm, rather than “merely a retainer interest in occasional, discrete, separate cases” (Opinion 03-10). Conversely, we have said that a judge need not disqualify or disclose the familial relationship when “attorneys to whom the judge’s spouse has referred occasional, discrete cases, or from whom the judge’s spouse has received such cases, appear in the judge’s court” (Opinion 15-33) or when a law firm before the judge employs the judge’s sibling on an “occasional, part-time, ... per diem basis” (Opinion 03-10). Here, assuming there is no continuing counsel relationship between the plaintiff and the judge’s sibling, we conclude the judge need not recuse.1
Because disqualification is not mandatory on these facts, we conclude the inquiring judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]). Accordingly, provided the judge is satisfied they can be fair and impartial, they may preside in a case where (1) the plaintiff is an attorney who frequently appears before the judge and was previously co-counsel with the judge’s sibling on several discrete cases and (2) plaintiff’s counsel rents office space in the same office as the judge’s sibling and also is an elected county legislator representing the district where the judge resides.
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1 We note that where a part-time lawyer judge has personally served as co-counsel with another attorney, the judge’s disqualification continues for two years after the representation completely ends (see Opinion 20-110). We decline to extend this principle to a judge’s sibling (cf. Opinion 21-14 & fn 1 [declining to apply a two-year disqualification period to a judge’s spouse’s former clients]).