Opinion 22-168

December 15, 2022

Digest:       Where a judge has been sued in the judge’s former official capacity as a nonjudicial public official:

(1) If the judge is being represented by the county attorney’s office: (a) During the representation, the judge is disqualified, subject to remittal, from matters involving the specific county attorney who is undertaking the representation. (b) After the representation concludes, the judge may preside in matters involving that attorney, provided the judge can be fair and impartial. Disclosure of the former attorney/client relationship is discretionary. (c) Both during and after the representation, the judge has no obligation to disclose or recuse with respect to other county attorneys who have no involvement in representing the judge.
(2) If private counsel is retained to represent the inquiring judge: (a) During the representation, the judge is disqualified, subject to remittal, from matters involving the specific attorneys who are representing the judge, subject to remittal. With respect to other partners or associates of the law firm, who have no involvement in representing the judge, the judge must disclose the representation while the representation is ongoing.

(b) After the representation concludes, the judge need not disclose or disqualify in matters involving the law firm and/or the specific attorneys involved in the representation, provided the judge can be fair and impartial.

Rules:        Judiciary Law § 14; Public Officers Law §§ 17(2)(b), 18(3)(a)-(b) ; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 22-183; 21-82; 21-22(A); 20-98; 08-171/08-174; 98-14.

Opinion:

         A full-time judge has been sued in connection with a case the judge handled in their prior employment as a prosecutor and is being defended by the county attorney’s office.¹ The representation is currently being handled exclusively by the County Attorney, without the participation of any assistant county attorneys. The judge asks if it is necessary to disqualify and/or disclose in unrelated matters where the county attorney’s office appears. Further, as the county attorney’s office is considering whether to retain outside counsel for the judge’s representation, the judge also asks about their ethical obligations if such private counsel is retained.

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 judge must disqualify in statutorily required circumstances (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]).

Government Attorneys Involved in the Representation

         When a judge is sued in the judge’s former nonjudicial capacity for conduct allegedly undertaken in their former institutional or official role as a nonjudicial public official, we have said the judge is disqualified, subject to remittal, from matters involving the specific government attorneys who are personally involved in representing the judge, during the representation only (see Opinion 20-98). The obligation does not extend to other attorneys in the same government law office who have no involvement in representing the judge, and it terminates when the representation ends (see id.).

         Here, the judge is being sued for acts allegedly undertaken in the judge’s former nonjudicial, official role as prosecutor and is represented exclusively by one individual, the County Attorney. Under these circumstances, the judge is disqualified, subject to remittal, from matters involving the County Attorney during the representation (see Opinion 20-98; see also Opinion 21-22[A] [three-step process for remittal of disqualification]).² The disqualification continues until the representation ends.

         In this particular situation, we do not impute the conflict to all assistant county attorneys, notwithstanding the chain of command (see e.g. Opinion 98-14). Thus, the judge may preside in matters involving the assistant county attorneys who are not personally involved in representing the judge, as long as the judge can be fair and impartial (see Opinions 20-98; 98-14 [representation by the Attorney General not analogous to representation by a firm in a personal matter as there is no “unity of interest” among the assistant attorneys general]).

Once the representation terminates, the judge may preside in matters involving the County Attorney and/or assistant county attorneys, provided the judge can be fair and impartial. Disclosure of the former attorney/client relationship in subsequent matters is entirely discretionary (see Opinion 20-98).

Private Attorneys Retained by the Government Office

         We have distinguished “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)” from the more common scenario where “a private attorney is representing a judge in the judge’s personal or fiduciary capacity” (Opinion 21-82). Significantly, “the state, rather than the judge, will pay the judge’s legal fees and expenses” (see id.).

         Thus, where a full-time judge is being represented in an Article 78 proceeding in the judge’s official judicial capacity by private counsel, we advised that the judge is disqualified, subject to remittal, in any matters involving the specific attorneys who are representing the judge for the duration of the representation (see Opinion 21-82). We said 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 (see id.). Once the Article 78 proceeding terminates and the representation ends, we said 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 (see id.).

         We conclude the same principles apply where, as here, the judge is being represented in the judge’s former official capacity as a county-level nonjudicial public official. Thus, if outside counsel is selected to represent the inquiring judge under Public Officers Law § 18(3)(b), the judge is disqualified, subject to remittal, in any matters involving the specific attorneys who are representing the judge for the duration of the representation. With respect to other partners and associates of the law firm, the judge must disclose the representation while it is ongoing.

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

Retention of Private Counsel to Defend the Judge at the County’s Expense

         We note that if the County Attorney here retains outside counsel to represent the judge in the judge’s former official capacity as a nonjudicial public official, the judge’s obligations change only in one respect. Specifically, during the representation, the judge must disclose the representation when other attorneys from the law firm (i.e. those who are not directly involved in the representation) appear before the judge (see Opinion 21-82 [“because other attorneys in a private law firm share a common financial interest”]). Otherwise, the obligations are identical.

         We also emphasize that the judge’s obligations here, when being represented in the judge’s current or former official capacity as a public official, are very different from the judge’s obligations when being represented in a personal legal matter or as a fiduciary (compare Opinions 20-98; 21-82 with Opinions 22-183; 08-171/08-174). In particular, we limited the judge’s obligations to the duration of the representation (rather than imposing a two-year tail) and limiting disqualification to those specific attorneys who are representing the judge (rather than the entire firm) (see Opinion 21-82).

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¹ In certain circumstances, a county or other political subdivision of the state “shall provide for the defense of [an] employee in any civil action, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties” (Public Officers Law § 18[3][a]).

² Of course, if the judge learns that other assistant county attorneys have become involved in the judge’s representation, the judge will have the same obligations with respect to those attorneys as well.