Opinion 22-22(B)

March 10, 2022

Digest:         A full-time judge, previously employed as an attorney in a not-for-profit labor union’s legal services office, and who upon retirement will be eligible for a pension and medical benefits through the union:
(1) is permanently disqualified in cases where the judge participated in any way as an attorney, whether in a personal or supervisory capacity;
(2) is disqualified for two years, subject to remittal, in cases involving the judge’s former clients; but
(3) is not otherwise disqualified from cases where a litigant is represented by the union, provided the judge can be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i)-(ii); 100.3(E)(1)(c); 100.3(F); Opinions 21-29; 20-73; 20-40; 18-118; 18-04(A); 17-150; 04-42.

 Opinion:

         Before assuming the bench, the inquiring full-time judge was an attorney for a labor union’s legal services office. The judge explains that the union, a not-for-profit entity, participated in a legal services plan that provided free legal services to eligible union members, including representation on certain matters in the same court where the judge now presides. All clients of the legal services office are union members, and fees deducted from members’ paychecks cover the cost of the services supplied under the legal services plan. Based on the judge’s length of service with the union, the judge will be eligible for a pension and medical insurance benefits on retirement.¹ The pension is administered by a third-party entity and not directly by the judge’s former employer. The judge has been on the bench nearly three years, and has thus far been recusing from all cases where a litigant is represented by attorneys provided by the union’s legal services plan. On these facts, the judge asks if it is ethically permissible, at this time, to preside in cases where a litigant is represented by the union.

         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 also disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge knows that “the judge has an economic or other interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]), “the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]), or “a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter” (22 NYCRR 100.3[E][1][b][ii]). Where the judge previously served as a lawyer in the matter in controversy, the disqualification is not subject to remittal (see 22 NYCRR 100.3[F]).

         We recently advised that a judge who “worked for an insurance company more than a decade ago and has a pension benefit associated with that company” maintains a financial connection to that employer, giving rise to a situation “in which the judge’s impartiality might reasonably be questioned” (Opinion 21-29). We reached this conclusion notwithstanding that, much like the present inquiry, the pension was “independently managed by an outside third party” and was “not in pay status” (id.). Relying on opinions involving judges who were previously employed with a private law firm, we said the judge is disqualified, subject to remittal, when the former employer appears as an insurer of a party in a lawsuit pending before the judge (see id., citing Opinions 18-118 and 04-42).

         While the pension benefit here has similarities to that considered in Opinion 21-29 (especially the non-pay status and third-party administration of the pension), we conclude there is an even more significant distinguishing factor based on the nature of the judge’s former employer. In Opinion 21-29, the judge’s former employer was a for-profit entity (specifically, an insurance company), while the judge herein was employed by a not-for-profit entity. We have, in several instances, recognized a distinction between judges who formerly worked in the private sector and those who worked for governmental or not-for-profit entities. For example, former prosecutors who become judges may immediately preside over new criminal matters prosecuted by their former colleagues (see e.g. Opinion 18-04[A]), while judges who were in private practice are disqualified, subject to remittal, from matters involving former law partners and associates for two years after their relationship with the law firm completely ends (see e.g. Opinion 20-40; 22 NYCRR 100.3[E][1][b][ii]). As explained in Opinion 17-150, “[a] lawyer’s employment in a government law office differs significantly from employment in a private law firm, in that it is unlikely to create any appearance of a financial or business relationship with his/her public sector colleagues.” We applied this same “public sector” standard to a judge who previously worked for a not-for-profit law office, concluding “there is likewise no such appearance for attorneys of a not-for-profit Legal Aid Society. Accordingly, the judge may preside in matters involving former Legal Aid Society colleagues, provided he/she can be fair and impartial” (Opinion 20-73).

         A similar logic is appropriate here, as the union’s legal services office offers free legal services to its members, much like a legal aid society. In our view, the judge’s eligibility for future pension benefits does not create, or appear to create, a “financial or business relationship” with the union or the judge’s former colleagues, as the union is a not-for-profit entity whose continued existence does not depend on its profitability or commercial success (cf. Opinions 18-118 fn 1; 04-42). Accordingly, the judge may preside in matters where a litigant is represented by the judge’s former colleagues, provided the judge can be fair and impartial.

         For completeness, we also note that the judge (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 the judge’s former clients (see Opinion 20-73). With respect to the second point, we note that 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. Thus, as more than two years have elapsed since the judge’s former employment with the union, disqualification or disclosure in new matters involving these former clients is now left to the judge’s sole discretion.

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¹ The judge has no imminent plans to retire