Opinion 23-05

February 2, 2023

Question:          A new full-time judge asks several questions arising out of their recent employment with a law firm partly owned by their spouse and their earlier employment with a different law firm.

Discussion:        1. May your co-judges hear cases in which your spouse’s law firm appears?
We decline to address questions concerning the conduct of third parties, including any judge other than the inquirer (see Opinion 07-108).

2. May your spouse’s law firm represent a defendant in a case where you had previously conducted the arraignment?
This question concerns a lawyer’s ethical duties, which are outside our purview (see Opinion 18-01).

However, if your spouse’s law firm is retained post-arraignment to represent a criminal defendant in a case you previously arraigned, you are thereafter disqualified from the matter (see 22 NYCRR 100.3[E][1][e]). If your spouse personally undertakes the representation or is likely to appear in the courtroom, then the disqualification is not subject to remittal (see 22 NYCRR 100.3[E][1][e][i]; 100.3[F]). Nevertheless, if other members of the firm undertake the representation without your spouse’s involvement, then the disqualification may be subject to remittal (see 22 NYCRR 100.3[E][1][e][ii]; see also generally Opinion 21-22[A] [requirements for remittal]).

3. What are your obligations with respect to an earlier private law firm employer, unaffiliated with your spouse, given that all business and financial connections between you and that law firm completely terminated in October 2020?

(a) Your Former Cases: In matters where you participated as a lawyer in any way, even minimally, you may not preside over those matters (see Opinions 17-150; 21-05). This obligation does not expire and is not subject to remittal (see id.; 22 NYCRR 100.3[E][1][b][i]; 100.3[F]).

(b) Your Former Colleagues and Firm: The obligation to disqualify in matters involving your former law firm colleagues, or the firm itself as your former employer, lasts for two years after all business and financial connections between you and the law firm completely terminate (see Opinion 15-126). Here, since you indicate the professional relationship was completely severed more than two years ago, you have no ongoing obligation to disqualify in matters involving the law firm or your former colleagues solely on that basis.

However, if you have an ongoing social relationship with a specific former colleague, you should assess that relationship when the attorney appears before you, using the categories set forth in Opinion 11-125. Where the relationship is beyond that of an “acquaintance” as defined in Opinion 11-125, the decision to disclose or disqualify due to a close social/personal relationship with an attorney depends on the totality of the circumstances based on a number of factors (id.).

Enclosed:          Opinions 21-22(A); 21-05; 18-01; 17-150; 15-126; 11-125; 07-108.