Opinion 89-13

February 24, 1989

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion.

Topic:          Appearance of an attorney before a judge where the judge has previously represented the attorney in a legal matter.

Digest :        A judge shall disqualify himself or herself for a reasonable period of time depending on the circumstances, perhaps two years, after the termination of an attorney client relationship where the judge represented the attorney. He or she must thereafter disclose the prior representation on the record and proceed only with the consent of the parties.

Rules:          22 NYCRR 100.3(d); 22 NYCRR 16.1

Opinion:

         The present inquiry concerns a part-time town justice who, in the course of his own private practice, represented another attorney in the latter's matrimonial action. During this representation, the client was not allowed to appear before the judge. The judge asks how long must the former client-attorney continue to be disqualified from appearing before him. The correct form of the inquiry goes to the judge's obligation of recusal, not the attorney's disqualification.

         The Commission on Judicial Conduct not only has criticized, but has censured and removed judges for presiding over cases where a party was a former client of the judge. Matter of Latremore and Matter of Edwards, 1987 Annual Report; Matter of Orloff and Matter of Conti, 1988 Annual Report. In these cases there appears to have been no disclosure of any kind made upon the record, and some cases even involved the adjudication of a present client's case. In the reverse situation, where the attorney has represented the judge, this Committee has held that disclosure may be sufficient and disqualification not always necessary.

         In this matter, the judge should recuse himself from any case involving a lawyer whom he previously has represented, perhaps using as a guide the two-year period that appears in 22 NYCRR 16.1 of the Rules of the Chief Judge, for a reasonable period from the date of termination (settlement, trial or final appeal) of the matter. Following this period, the judge need only continue recusal if he or she personally harbors a doubt as to his or her ability to act impartially in the matter. The judge shall consider all relevant factors to determine if recusal is appropriate, including but not limited to the nature of the instant proceeding, the nature of the prior representation as well as its frequency and duration, the length of time since the last representation, the amount of work done for the attorney by the judge and the amount of fee, whether the representation was routine or technical or involved the morality of the client-attorney’s conduct, whether there exists a social relationship between the attorney and justice, and whether there are any special circumstances creating a likely appearance of impropriety.

         If, after considering all the above factors, the judge does not determine that continued recusal is required, he or she must, nevertheless, disclose the relationship to all parties upon the record and the parties must then consent in writing, or orally in open court upon the record in order for the judge properly to preside. The judge should recuse himself or herself if any party does not consent to the judge's presiding, unless (see Committee Opinion 88-153) the judge finds the objection to be frivolous, in bad faith, or wholly without merit. 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.

         The two-year waiting period, the option to recuse oneself and the continuing duty to disclose upon the record are adequate safeguards to avoid creating the appearance of impropriety in this situation.