Opinion 22-177

December 15, 2022

Digest:       (1) A judge who was formerly a supervisory-level attorney at the Legal Aid Society:
(a) is permanently disqualified in cases in which the judge participated in any way as an attorney, whether in a personal or supervisory capacity and
(b) is disqualified, subject to remittal, from presiding over matters involving former clients for a period of two years, commencing from the end date of the judge’s employment with Legal Aid.

(2) Whether the judge may preside over cases involving a former Legal Aid colleague with whom the judge is “still friendly” depends on the nature of the relationship.

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 22-22(B); 22-22(A); 20-73; 19-110; 11-125.

Opinion:

         The inquiring full-time judge formerly served as a supervisory level attorney¹ with the Legal Aid Society. The judge originally supervised all Legal Aid cases in the court where the judge now serves, but was reassigned to supervise cases in a different court roughly eight months before assuming judicial office. The judge asks for guidance on (a) whether the judge may preside in criminal cases, including trials where Legal Aid “was not involved” and arraignments of defendants who were not represented by the judge or the judge’s former subordinates during the judge’s tenure; (b) how to calculate the two-year disqualification period for former clients; and (c) the judge’s obligations in matters involving the judge’s former supervisor and subordinates with whom the judge is “still friendly.”

         A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must also disqualify in any proceeding in which the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), including when the judge knows he/she previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]).

Effect of Former Employment with Legal Aid on Judge’s Ability to Preside in a Criminal Part

         We have advised that a full-time judge who formerly worked for the Legal Aid Society (1) is permanently disqualified in cases in which the judge participated in any way as an attorney, whether in a personal or supervisory capacity and (2) is disqualified for two years, subject to remittal, in cases involving former clients (see Opinion 20-73). However, the judge may otherwise preside in criminal cases, including those in which former Legal Aid colleagues appear, provided the judge can be fair and impartial (see id. [noting that a lawyer’s former employment with Legal Aid is unlikely to create any appearance of a financial or business relationship with former Legal Aid colleagues]).

         We note that while there is no per se ethical prohibition against presiding in criminal matters, the judge should undertake the appropriate analysis to ascertain whether disqualification is required in a particular case.

Calculation of Two-Year Period for Former Clients

         As for when the two-year disqualification period commences for former clients, we turn initially to Opinion 22-22(B). In that opinion, where the judge was previously employed with a not-for-profit labor union’s legal services office, we said (id.):

the attorney-client relationship between the judge and these former union member clients terminated when the judge ceased employment with the union and assumed full-time judicial office.

For purposes of calculating this two-year period, representation of a criminal defendant typically ends when the criminal matter concludes and (if applicable) all fees are paid. However, earlier dates may be possible, for example, if the attorney withdraws, is discharged from the representation, or ceases to be employed by the firm/organization that is attorney of record for the defendant.

         On the facts presented, especially as this judge had broad supervisory responsibilities as an attorney, we do not think that the date of a new assignment within Legal Aid is the appropriate starting point for the two-year period to run. Instead, the two-year period for former clients is calculated from the date that the judge ceased employment with the Legal Aid Society (see Opinion 22-22[B]).

Presiding in Matters Involving Former Colleagues

         The judge’s obligations when former colleagues from Legal Aid appear depends on the nature of their relationship. As previously noted, a judge generally may preside immediately in matters involving former Legal Aid colleagues (see Opinions 20-73; 22-22[B]). However, different considerations may apply where the judge’s continuing relationship with those former colleagues is of a more personal nature (see Opinion 11-125).

         The fact that a judge is “still friendly” with a former colleague may, of course, mean many different things. Indeed, we have recognized that interpersonal relationships are “so varied, fact-dependent, and unique to the individuals involved” that we can provide “only general guidelines” to assist judges in determining “the nature of their own specific relationships with particular attorneys and their ethical obligations resulting from those relationships” (Opinion 11-125):

       •   If the judge deems a particular former colleague is an “acquaintance” as defined in Opinion 11-125, the judge may preside without disclosure.

       •   If the judge concludes they have a “close social relationship” with a former colleague under Opinion 11-125, the judge must disclose the relationship either in writing or on the record but may thereafter preside in the judge’s discretion.

       •   If the judge determines a particular friendship falls into the “close personal relationship” category, the judge must not preside, absent remittal of disqualification (id.; Opinion 22-22[A] [three-step process for remittal]; 22 NYCRR 100.3[F]).

Thus, whether the judge may preside over cases involving a former supervisor or subordinate with whom the judge is “still friendly” depends on the nature of the relationship. As always, the judge must not preside if the judge cannot be fair and impartial.

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¹ As previously noted, “we take a practical, common-sense approach” to determine whether an individual has or had a “supervisory role” in their employment (Opinion 19-110 [providing guidance on the concept]).