Joint Opinion 88-17(c)/88-48

June 13, 1988

Topic:          Appearance of former private client as a party before part-time town justice.

Digest:         A judge must disclose on the record his prior legal representation of a person who appears before the judge as a party, and may proceed only if all parties consent and if the judge determines that he can act impartially.

Rules:          22 NYCRR 100.3(c)

Opinion:

         Lawyers who are part-time town justices ask whether they must disqualify themselves if they recognize a party in a civil or criminal case before them to be a former client.

         The Committee is of the opinion that whenever a party who appears before a judge is recognized by the judge as a former client of the judge, 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 of the client 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 client and the amount of fee, whether the representation was routine or technical or involved the morality of the client's conduct, and whether there exists a social relationship between the judge and the former client, and whether there are any special circumstances creating a likely appearance of impropriety. If, weighing all circumstances, the judge personally 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 In case only one party appears, and the other party defaults, the judge, upon making disclosure to and upon obtaining the consent of the appearing party, may preside.

         Some judges who also practice law have found it helpful, at the opening of a court session, to ask whether any person having business before the court on that day or evening has any relationship to the judge or the judge's law firm; however, this procedure may or may not be practical in a particular judge's situation.

         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 client.

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

_____________________________

         ¹But see Committee Opinion 88-153, dated January 12, 1989, to be published in Volume III.