Opinion 21-27

April 29, 2021

Dear :

         This responds to your inquiry (21-27) asking whether you may hear a custody/visitation case involving the same family in which you had previously served as attorney for the child 12 years ago.

A judge is disqualified in any proceeding in which their impartiality might reasonably be questioned (see NYCRR 100.3[E][1]) or in any other circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). As relevant here, a judge is prohibited from presiding over or taking part in any action in which they have previously served as counsel (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][b][i]).

However, the judge is not forever barred from presiding over matters involving a particular child, based solely on the fact that the child was a former client. Rather, if the former client is involved in another action, the judge is disqualified for two years following the prior representation as attorney for the child, subject to remittal.¹

If, after the two years have elapsed and there is no substantial connection between the circumstances underlying the prior matter and the facts and legal issues of the current matter, the judge has no obligation to disqualify or to disclose the prior case or their connection to it. If, however, the judge becomes aware that the new case has substantial connections that are material and relevant to a case where the judge had previously served as attorney for the child, the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the prior proceeding. Because disclosure is mandated in lieu of disqualification, the judge must not preside if unwilling to preside or not legally permitted to make full disclosure.

         Enclosed, for your convenience, are Opinions 21-22[A]; 17-169/17-170; 15-126; and 14-07 which address this issue.

__________________

¹ As explained in Opinion 21-22(A), remittal may be available even if a party is unrepresented (see Opinion 21-22[A] [abolishing the “pro se remittal” rule]).

                                                 Very truly yours,

                                                 Margaret T. Walsh

                                                 Supreme Court Justice

                                                 Committee Co-Chair

                                                 Lillian Wan

                                                 Acting Supreme Court Justice

                                                 Committee Co-Chair

Encls.