Opinion 88-95

September 19, 1988

Topic:          Effect of judge’s prior employment with a law firm on judge’s ability to preside over cases involving the firm.

Digest:         Since eight years have passed since the judge worked at the firm, and provided the judge feels he or she can be impartial, the judge need not disqualify himself or herself from the case.

Rule :           22 NYCRR §100.3

Opinion:

         A judge of the Court of the City of City of New York inquires whether the judge's employment for eleven months as managing attorney of a law firm, over eight years ago, automatically disqualifies the judge from presiding at jury trials in which that law firm appears, even if the judge reveals this fact on the record and opposing counsel does not object or seek the judge's recusal.

         Section 100.3(c) of the Rules of the Chief Administrator provides:

(c) Disqualification. (1) a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:

(i) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;

(ii) the judge served as a lawyer in the matter in controversy, or a lawyer with whom he or she previously practiced law served during such association as a lawyer concerning the matter, ...

(d) Remittal of disqualification. A judge disqualified by the terms of subparagraph (c)(i), (ii) or (iv) of this section may, instead of withdrawing from such proceeding, disclose on the record the basis for such disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial ..., the judge is no longer disqualified, and may participate in the proceeding....

         Under the above rule, a judge who was formerly employed as an attorney with a law firm is not forever disqualified from participating in a proceeding involving that firm. He or she is disqualified if he or she was involved in the subject matter in controversy.

         To avoid an appearance of impropriety, the judge, for a reasonable period of time after termination of employment with the law firm, should reveal his or her prior employment or association and permit the parties and their attorneys to request that he or she withdraw from further participation in the matter. In determining what is a reasonable time during which such disclosure is required, the judge may consider, among other factors, the analogous Rule of the Chief Judge (22 NYCRR 16.1), prohibiting appearances by former appellate court judges or justices before the courts in which they were members for a period of two years. The judge, upon making disclosure, should withdraw if requested.¹

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