Opinion 21-76

April 29, 2021

Digest:       Where a part-time town justice’s law firm has a referral relationship with an attorney, the judge is disqualified from all cases in which that attorney appears for two years from the date their business relationship is completely terminated. However, the disqualification is subject to remittal after full disclosure, even if a party is proceeding without counsel.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.6(B)(1)-(5); Opinions 21- 22(A); 20-22; 19-25; 15-63; 13-167; 12-179; 12-08; 06-63.

Opinion:

         A part-time attorney judge has referral relationships with several local attorneys. While these attorneys are not affiliated with the judge in the practice of law, they do have a financial relationship based on the referrals. The judge understands disqualification is required in matters where these attorneys appear, but asks if the disqualification is subject to remittal.

         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 part-time attorney judge may practice law, subject to limitations (see generally 22 NYCRR 100.6[B][1]-[5]). A judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), although disqualification may be remitted in appropriate circumstances (see 22 NYCRR 100.3[F]).

         In general, a judge who has a business and financial relationship with a law firm is disqualified from presiding in matters involving that firm while the relationship is ongoing and for two years from the date the relationship completely ends (see e.g. Opinions 19-25; 15-63; 13-167; 12-179; 12-08; 06-63). Because this judge has a financial relationship with the attorneys based on the referrals, the judge must likewise disqualify when the attorneys appear in the judge’s court during the relationship and for two years after the referral relationship ends. As a reminder, it is not the parties’ burden to request the judge’s disqualification; rather, “it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern” (Opinion 21-22[A] [citation omitted]).

         As disqualification on this basis is ordinarily subject to remittal following full disclosure on the record (see e.g. Opinions 19-25; 15-63; 06-63), we see no reason to prohibit remittal of disqualification here (cf. Opinion 20-22 [“except where specifically forbidden, a judge’s disqualification is typically subject to remittal”]).

         Thus, the judge is vested with discretion whether to offer the parties the opportunity to consider remittal of the judge’s disqualification based on the judge’s ongoing or recent referral relationship with an attorney, even when a party is unrepresented. The usual three-step remittal process applies (Opinion 21-22[A] [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 can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

These steps reflect that “[t]he decision to remit must be made freely, willingly, and without coercion, in full knowledge of the relevant facts” (id.).