Opinion 23-44
May 4, 2023
Digest: (1)
For two years after the representation is completely terminated and all fees
are paid, a judge is disqualified, subject to remittal, from all matters in
which an attorney who personally represented the judge appears before the
judge, and the judge must disclose the former representation when other
attorneys from the same law firm appear before the judge.
(2) Where the judge serves in a court with appellate jurisdiction, and their former counsel seeks leave to participate as amicus curiae in a case during that two-year period, the judge may not vote on their ex-counsel’s application. If the application is granted by the judge’s colleagues, the judge thereafter must not participate in the appeal unless it is practicable in the judge’s court to make full disclosure on the record or, where applicable, offer an opportunity for remittal of the judge’s disqualification.
(3) On a motion to submit an amicus brief, a judge without conflict may vote to approve or to deny the motion based on the merits of the brief and the value of its submission, in accordance with any applicable law or rules that govern such decisions. However, the judge should not consider potential practical impacts from other judges’ anticipated disqualification unless applicable law, rules, or administrative orders permit the judge to do so.
Rules: Judiciary Law § 14; 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(B)(7); 100.3(E)(1); Opinions 22-183; 18-46; 08-171/08-174; 08-46.
Opinion:
The inquiring full-time judge, who serves in a court with appellate jurisdiction, requests guidance about their obligations when an actual or prospective amicus curiae’s presence in an appeal would present a conflict either for the inquiring judge or for another judicial colleague.
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 uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), and must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge also must not lend the prestige of judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]), or in other circumstances as required by rule or law (see generally id.; Judiciary Law § 14).
Question 1. Inquiring Judge’s Former Counsel
The inquiring judge was represented by counsel at a law firm in a matter which completely terminated less than two years ago, and now asks about possible conflicts.
In Opinion 08-171/08-174, as subsequently modified by Opinion 22-183, the Committee addressed a judge’s obligations with respect to counsel who previously represented them on a personal legal matter which has now completely concluded. As relevant here:
(3)(a) Once the judge’s personal legal matter is concluded, the judge must continue to disqualify him/herself for a period of two years whenever the attorney who represented him/her, or an attorney who assisted that attorney in representing him/her, appears in the judge’s court. During the same two-year period, the judge’s disqualification is subject to remittal only if the judge believes that he/she can be impartial and only if the judge is willing to disclose fully the fact and nature of the representation.
(3)(b) During the same two-year period, when the judge’s personal attorney’s partners and associates who had no involvement in the judge’s representation appear, if the judge is willing to preside, he/she must fully disclose the fact and nature of the representation. If a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion.
These guidelines are directly related to the inquiring judge’s first question and provide precedent for reaching the same conclusion here.
We have previously advised that a judge’s obligations with respect to a former client remain the same whether that former client appears as a party or as an amicus curiae (see Opinion 18-46 [noting it “does not change the analysis”]). As noted in that opinion (id.; citations omitted):
Regardless of whether amici assert a private or a public interest, they will almost certainly be adverse to at least one party in the case, since their key function is to “call the court’s attention to law or facts or circumstances in a matter then before it that may otherwise escape its consideration.” We believe the asserted nature of amici’s interest in the subject matter (i.e. whether they are in the same line of business as a party or assert an interest focused on public policy, such as First Amendment rights) is largely irrelevant to the analysis. What is of consequence is that the judge presides fairly and impartially over a given proceeding, while avoiding even the appearance of impropriety.
Here, the same principles apply. The inquiring judge serves in a court with appellate jurisdiction, and the judge’s former counsel seeks leave to participate as amicus curiae in a case during that two-year period. Under such circumstances, we conclude that the judge may not vote on their former counsel’s application.
If the application is granted by the judge’s colleagues, the judge thereafter must not participate in the appeal, unless it is practicable in the judge’s court to make full disclosure on the record or, where appropriate, offer an opportunity for remittal of the judge’s disqualification.[1]
Question 2. Considering Other Judges’ Conflicts
The judge’s second question envisions a scenario where one or more other judges on the same appellate court or appellate panel have a conflict involving a particular proposed amicus curiae. In essence, the judge asks if it is ethically permissible, when deciding an application for leave to participate as amicus curiae, to consider another judge’s likely disqualification if it is granted.
Clearly, a judge may vote to approve or to deny the application based on the merits of the brief and the value of its submission and in accordance with any applicable law or rules that govern such decisions. However, we note that a judge must “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]). In our view, it could potentially create an appearance of impropriety and undermine the court’s appearance of neutrality and independence if a judge were to consider whether granting the application would require certain colleagues to disqualify from the matter.
Accordingly, the judge should not consider potential procedural or staffing impacts from other judges’ anticipated disqualification unless applicable law, rules, or administrative orders permit the judge to do so.
[1] Consistent with Opinion 08-171/08-174, the distinction is whether the specific attorneys who are appearing as amicus curiae were also personally involved in representing the judge. If so, then judge is disqualified from participating in the appeal, unless it is practicable in the judge’s court for the judge’s disqualification to be remitted.