Opinion 25-10

February 6, 2025

Digest:   A part-time judge who is employed by a not-for-profit organization’s law project to represent eligible community members in Supreme Court and Family Court need not disclose or disqualify in matters involving an outside attorney who is sometimes retained by the organization’s management to represent the organization in real estate matters in other jurisdictions. 

Rules:    Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(3); Opinions 23-125; 19-25; 09-47(A); 03-83; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring part-time judge maintains extra-judicial employment with a not-for-profit organization that provides a range of services to individuals in need.  The judge works in the organization’s law project, representing eligible community members as clients in Supreme Court and Family Court; he/she does not handle any landlord/tenant or real estate matters.  The judge has become aware that the organization’s management (not the law project) sometimes hires a particular outside attorney to handle real estate transactions for the organization.  That outside attorney is an independent solo practitioner and is not on retainer with the judge’s employer, and the real estate transactions take place beyond the geographical and jurisdictional boundaries of the judge’s court.  The judge does not select or work with this outside attorney or otherwise interact with him/her in the course of the judge’s extra-judicial employment; indeed, the judge notes the attorney has never had “anything to do with” the law project.  The judge asks if he/she must disqualify when this outside attorney appears in the judge’s court on eviction cases, unrelated to the judge’s extra-judicial employer. 

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must disqualify whenever the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]; see also Judiciary Law § 14).  Where disqualification is not mandatory, however, the judge is the sole arbiter of recusal, a discretionary decision within the personal conscience of the court (see People v Moreno, 70 NY2d 403, 405 [1987]).  Further, a part-time attorney judge may not permit his/her partners or associates to practice law in the judge’s court (see 22 NYCRR 100.6[B][3]).

          Although we have construed the term “associate” to “encompass more than the traditional notion of an associate in a law firm” (Opinion 09-47[A]), this judge is clearly not associated in the practice of law with the outside attorney, even though they may both receive payments from the same organization.  They are not professional colleagues in any sense and share none of the traditional indicia of a shared practice (see id. [reviewing prior opinions]).  Indeed, the outside attorney is an independent solo practitioner who is hired “on occasion” to represent the organization in real estate transactions, while the judge is on staff within the organization’s law project to represent eligible community members in Family Court or Supreme Court on certain matters.  As they are not “partners or associates,” the judge is not disqualified on that basis and also need not prohibit the attorney from practicing before other judges of the same court (see 22 NYCRR 100.6[B][3]).

          Significantly, in the present inquiry the judge and the attorney have no extra-judicial relationship whatsoever; they do not work together or even interact with each other.  The attorney’s occasional employment is unrelated to the law project and deals with matters beyond the judge’s jurisdiction; and the judge plays no role in selecting, supervising, paying, or otherwise interacting with the attorney in the course of the judge’s extra-judicial employment.  These facts are readily distinguishable from circumstances where we said a judge must disqualify (see e.g. Opinions 23-125 [attorney is not the judge’s client, but “is employed by the judge’s client as in-house counsel and operations manager and serves as the judge’s primary client contact”]; 19-25 [law firm had business relationship with the judge’s firm “involving uncompensated courtesy referrals”]; 03-83 [attorney does not represent the judge’s spouse personally, but is “selected by the judge’s spouse [to] represent the spouse’s employer”]).

          On these facts, we conclude this judge’s impartiality cannot reasonably be questioned when the attorney appears (see 22 NYCRR 100.3[E][1]).  Thus, the judge “is the sole arbiter of recusal” when the attorney appears on cases unrelated to the judge’s interests, provided the judge concludes he/she can be fair and impartial (cf. People v Moreno, 70 NY2d 403, 405 [1987]).