Opinion 21-82

April 29, 2021

Digest:       (1) A judge who is being represented in an Article 78 proceeding in the judge’s official capacity by private counsel under Public Officers Law § 17(2)(b) is disqualified, subject to remittal, in any matters involving the specific attorneys who are representing the judge for the duration of the representation. The judge is not disqualified when other partners or associates of the law firm appear, provided they have no involvement in representing the judge, but must make disclosure while the representation is ongoing. (2) Once the Article 78 proceeding terminates and the representation ends, the judge need not disclose or disqualify in matters involving the law firm and/or the specific attorneys involved in the representation, assuming the judge can be fair and impartial.

Rules:        Public Officers Law § 17(2)(b); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 21-22(A); 19-104; 08-171/08-174; 07-22; 98-14.

Opinion:

         The inquiring full-time trial-level judge is the respondent in an Article 78 proceeding, and would normally be represented by the Attorney General’s office. Due to a conflict, the Attorney General could not undertake the representation and instead certified a private law firm to represent the judge pursuant to Public Officers Law § 17(2)(b).¹ The judge asks if it is ethically permissible to preside in contested or uncontested matters where that law firm appears. If not, the judge asks how long the judge is disqualified in matters involving that law firm, and whether the judge’s 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]). Thus, a judge is disqualified in any matter where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         In general, when a private attorney is representing a judge in the judge’s personal or fiduciary capacity, we have required disqualification for the entire law firm during the representation (see Opinions 08-171/08-174; 19-104). After the attorney/client relationship completely ends, including payment of legal fees, the judge’s obligations continue for another two years (although at this point, only disclosure is required for attorneys who were not personally involved in the representation) (see id.).

         We have applied a different standard when a government attorney is representing the judge in the judge’s official judicial capacity, as there is essentially no personal attorney/client or financial relationship generated from an ethics perspective. During the representation, we said a judge who is being represented in their official judicial capacity by the Attorney General’s office must recuse in cases in which specific assistant attorneys general handling the matter appear before the judge, but need not recuse in cases where the appearance is by other assistant attorneys general (see Opinion 98-14). Further, where the Town Attorney had recently represented a town justice, in a now-concluded Article 78 proceeding involving the justice’s official duties, we said the judge’s disqualification in unrelated matters involving the Town Attorney only extended for the duration of that representation (see Opinion 07-22).

         We believe that the attorney/client relationship generated when a judge is being represented in the judge’s official capacity by private counsel selected under Public Officers Law § 17(2)(b) is in some ways analogous to the government attorney scenario. For example, in both instances, the state, rather than the judge, will pay the judge’s legal fees and expenses (see id.). Thus, the judge’s obligations need continue only while the representation is ongoing, and disqualification will be limited to the specific attorneys who are representing the judge. However, because other attorneys in a private law firm share a common financial interest, disclosure is required during the representation when other partners and associates from the law firm appear before the judge. The same principles apply in contested and uncontested matters.

         Accordingly, during the Article 78 proceeding, this judge must disqualify in any matters in which the specific attorneys who are representing the judge appear. The disqualification is subject to remittal (see Opinion 21-22[A]; 22 NYCRR 100.3[F]). When other attorneys from the law firm, who have absolutely no involvement in the judge’s Article 78 proceeding, appear before the judge, only disclosure is required (i.e. the judge is not disqualified but must fully disclose the representation). After disclosure, the judge has the discretion to preside, provided the judge can be fair and impartial.

         Once the Article 78 proceeding terminates and the representation ends, the judge need not disclose or disqualify in matters involving the law firm and/or the specific attorneys involved in the representation, assuming the judge can be fair and impartial.

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¹ We understand that the state Comptroller will pay reasonable attorneys’ fees to such private counsel under Public Officers Law § 17(2)(b).