Opinion 22-183

December 15, 2022

Digest:         Where a part-time town justice who is also a full-time superior court law clerk was formerly represented by counsel in a divorce action, but more than two years have elapsed since the attorney-client relationship completely terminated, including payment of legal fees:
(1) In town court, the judge need not disqualify or disclose in matters involving the law firm, including the attorney(s) who personally represented the judge, based on a representation that concluded more than two years ago. Opinions 19-104, 19-93, 18-42, 17-76, 15-08, 10-99, 10-56, and 08-171/08-174 are modified to reflect that, after the two-year period, whether to disclose is solely within the judge’s discretion.

(2) In superior court, the town justice (as law clerk) should inform their judge of the nature and circumstances of the prior representation so that the superior court judge can determine how to proceed when the law firm appears.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 22-138; 19-72; 15-08; 13-26; 10-56; 08-171/08-174. 

Opinion:

           The inquiring town justice also serves as principal law clerk to a superior court judge. A private attorney represented the town justice in a divorce action that concluded in October 2020 with "no further action expected (no custody, support or even DRO issues remain)."¹ The justice asks about their ethical obligations when this attorney and other law firm colleagues appear in the town court or the superior court.

           A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgement” (22 NYCRR 100.2[B]) and must “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

1. The Town Justice's Obligations in Town Court

           When a judge retains counsel for a personal legal matter, the judge's obligations during the representation, and for the two-year period after the representation completely ends and all fees are paid, are set forth in Opinion 08-171/08-174 and its progeny. These requirements may be nuanced, but they are clear and unambiguous.²

           Here, assuming that the representation completely ended in October 2020, the two-year period has already run. Our requirements at this stage have varied over time. In Opinion 08-171/08-174, after the two-year mark, we required effectively perpetual disclosure for attorneys who were personally involved in the judge's representation. In Opinion 10-56, we sought to soften this requirement, advising that a judge's "continuing obligation to disclose when the judge's personal attorney appears before him/her more than two years after the representation ended depends on the particular facts and circumstances presented in each case." We declined to impose any durational limit, but instead advised that the judge must continue to disclose for some unspecified period based on such factors as (1) the nature of the instant proceeding; (2) the nature of the prior representation; (3) the frequency and duration of the representation; (4) the amount of work the attorney performed for the judge and the fee charged; (5) whether the representation was routine or technical; and (6) whether there are any special circumstances creating a likely appearance of impropriety (see e.g. Opinions 15-08 fn 6; 10-56).

           On further consideration, we recognize this open-ended approach to a judge's obligations after the initial two-year period "might potentially leave judges, attorneys, and others uncertain about how long is proper under the circumstances" (Opinion 22-138 ["A set period will be simpler for judges to remember and apply, and two years is a standard we have used regularly since the Committee's inception."]).

           Going forward, we therefore adopt a bright-line rule that, after the initial two-year period of disqualification (for attorneys personally involved in the judge’s representation) or disclosure (for their partners and associates who had no involvement), the judge has no further obligation to disqualify or disclose. While a judge certainly may disclose the law firm’s former representation more than two years after the representation ends, it is no longer required, even when the attorney appearing before the judge was personally involved in the judge’s prior representation. Should the judge choose to disclose the former representation beyond the two-year mark, recusal is entirely within the judge’s discretion, even if a party objects. 

           Here, assuming the town justice can be fair and impartial, the justice has no further duty to disclose or disqualify in any matter where the law firm appears based solely on a former representation that concluded concluded more than two years ago.

           Opinions 19-104, 19-93, 18-42, 17-76, 15-08, 10-99, 10-56, and 08-171/08-174 are modified to reflect that, after the two-year period, whether to disclose is solely within the judge’s discretion.

2. The Town Justice’s Obligations as Law Clerk in Supreme Court

           In superior court, the town justice (as law clerk) should inform their judge of the nature and circumstances of the prior representation so that the superior court judge can determine how to proceed when the law firm appears.

           Where a judge’s staff member has a conflict, we have said “it is ordinarily sufficient to insulate the staff member and disclose the insulation” (Opinion 19-72). We have also said the insulation “need only continue until the matter is concluded and the law clerk has paid all fees due and owing” (see Opinion 13-26). However, we note that the decision about whether to disclose, insulate, or exercise recusal in a particular matter rests with the superior court judge, not the law clerk.

__________________________

¹ According to the state comptroller's website: "A Domestic Relations Order (DRO) is a court order issued after a final judgment of divorce that provides the ex-spouse of a Participant [in the New York State & Local Retirement System] with a share of the Participant's benefit upon retirement."

² During the representation, the judge must disqualify for the entire firm. After the representation completely ends, we distinguish between attorneys personally involved in representing the judge and other law firm colleagues who had no involvement in the matter.