Joint Opinion 88-120 and 88-125

October 27, 1988

Topic:          Appearance of an attorney before a judge where the attorney represented the judge personally in a prior legal proceeding; disqualification or disclosure.

Digest:         A judge must disclose the fact on the record where an attorney who appears before him represented the judge in a prior personal legalmatter; no rigid time limitation exists upon the duty to disclose. 

Rules :         22 NYCRR 100.3(d)

Opinion:

         In the present inquiry, a judge was involved personally as a party in a legal proceeding for which he retained an attorney to represent him. The matter was brought to a conclusion some time before the present inquiry. The question raised is how long must the judge continue to recuse himself when this attorney appears before him. 

         Whenever an attorney who appears before a judge has been a counsel to the judge in a personal legal proceeding, the judge need not immediately disqualify himself or herself, unless the judge personally harbors a doubt as to his or her ability to act impartially in the matter. In the absence of such doubt, the judge must consider all relevant factors to determine if disqualification is appropriate, including, but not limited to, the nature of the instant proceeding, the nature of the prior representation by the attorney, as well as its frequency and duration, the length of time since the last representation (perhaps using the two-year period that appears in 22 NYCRR 16.1 of the Rules of the Chief Judge as a guide), the amount of work done for the judge by the attorney and the amount of fee, whether the representation was routine or technical or involved the morality of the judge's conduct, whether there exists a social relationship between the judge and the judge's former attorney, and whether there are any special circumstances creating a likely appearance

of impropriety.

         If, weighing all circumstances, the judge does not feel that disqualification is required, the judge, nevertheless, should disclose the relationship to both parties and may preside over the case only upon consent of both parties.¹ Where only one party appears, and the other party defaults, the judge, upon making disclosure to and upon obtaining consent of the appearing party, may preside.

         It should be noted that the Commission on Judicial Conduct has criticized the concept of a judge presiding over a case where a party is a former legal client of the judge. This inquiry concerns the converse of that situation, where the judge is a former client of an attorney representing a party.

         This Opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.

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         ¹ This opinion was modified by Committee Opinion 88-153 dated January 12, 1989, to be published in Volume III.